Michael Davis v. Electronic Arts Inc.
775 F.3d 1172
9th Cir.2015Background
- EA publishes the annual Madden NFL video game, which simulates NFL games with avatars representing current and historic teams and players.
- EA licenses current players’ names/likenesses via the NFL Players Association and has paid millions; it did not license likenesses of certain former players depicted on approximately 100 "historic" teams appearing in some editions.
- Historic-team avatars omit actual names but match position, years, height, weight, skin tone, and skill attributes of real former players; plaintiffs allege these are accurate likenesses of thousands of former NFL players.
- Plaintiffs (former players including Ferragamo, Davis, Dupree) sued EA under California Civil Code § 3344 and common law right of publicity, plus ancillary claims; EA moved to strike under California’s anti‑SLAPP statute, which the district court denied.
- On appeal, EA conceded use of plaintiffs’ likenesses but argued several First Amendment defenses (transformative use, public interest/public affairs exemption, Rogers test, incidental use) would bar the claims; the Ninth Circuit affirmed the denial of the anti‑SLAPP motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Transformative‑use defense | Plaintiffs say EA’s depictions replicate and let users control players doing what made them famous, so not transformative | EA says the game (as a whole) adds creative elements and is protected speech | Court: Keller controls — Madden’s avatars are not transformed; defense fails |
| Public‑interest / §3344(d) public affairs exemption | Plaintiffs say Madden is a game, not a publication of factual reporting, so exemption doesn't apply | EA contends depiction of players/teams concerns sports news/public interest and is exempt | Court: Madden is a game, not a factual publication; exemption and common‑law defense fail |
| Rogers test (title/artistic‑relevance) | Plaintiffs: right of publicity protects more than consumer confusion; Rogers is inapplicable | EA urges extension of Rogers to right‑of‑publicity claims to protect artistic relevance | Court: Rogers protects Lanham Act consumer‑confusion interests, not right‑of‑publicity claims; test does not apply |
| Incidental‑use defense | Plaintiffs: players’ likenesses materially contribute to commercial value and core purpose; use is not incidental | EA: any individual former player’s use is de minimis among thousands and therefore incidental | Court: likenesses have unique commercial value, prominence, and centrality to Madden’s simulation goal; incidental‑use defense fails |
Key Cases Cited
- Keller v. Elec. Arts, 724 F.3d 1268 (9th Cir. 2013) (use of player avatars in sports videogame was not transformative)
- Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (Cal. 2001) (formulation of transformative‑use balancing test)
- Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) (title artistic‑relevance test for Lanham Act claims)
- Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786 (2011) (video games protected by the First Amendment)
- Hart v. Electronic Arts, 717 F.3d 141 (3d Cir. 2013) (similar treatment of avatars in sports videogames)