Samuel Keller v. Electronic Arts Inc.
724 F.3d 1268
| 9th Cir. | 2013Background
- EA created NCAA Football to replicate college teams with real players’ likenesses (jersey number, physical traits, playing style) but without naming athletes; players can upload names via user rosters; game features realistic stadiums, sounds, and play environments; EA allows limited post-publication use of real names by users; Keller sued under California right-of-publicity statutes and common law; district court denied EA’s anti-SLAPP motion; court must apply two-step anti-SLAPP analysis and assess transformative use and related defenses; majority holds EA’s use is not protected by the First Amendment under California transformative use standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EA’s use of Keller’s likeness is transformative as a matter of law | Keller | EA argues transformative use applies; game context and player manipulation may transform likeness | No; not transformative as a matter of law |
| Whether Rogers test should apply to right-of-publicity claims | Keller | EA seeks Rogers test extension from Lanham Act to publicity | Rejected; Rogers test not adopted for publicity claims |
| Whether California public-interest defenses apply to EA’s use | Keller | Defenses apply if reporting public interest or news; not applicable here | Not applicable to interactive game use |
| Balance between First Amendment protection and right of publicity in NCAA Football | Keller | Transformative use should protect expressive works over publicity rights | First Amendment defense does not shield EA; publicity right prevails on motion to strike |
| Impact of No Doubt/Hart and other precedents on this case | Keller | No Doubt/Hart support lack of transformation | Majority relies on No Doubt; dissent disagrees with transformation scope |
Key Cases Cited
- Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (Cal. 2001) (transformative-use balancing factors for publicity claims)
- Winter v. DC Comics, 30 Cal.4th 881 (Cal. 2003) (transformative character in satire/parody context)
- Kirby v. Sega of America, Inc., 144 Cal.App.4th 47 (Cal. Ct. App. 2006) (transformative character in video game context)
- No Doubt v. Activision Publishing, Inc., 192 Cal.App.4th 1018 (Cal. Ct. App. 2011) (not transformative where avatars are literal depictions doubling as celebrities)
- Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013) (applies California test; transformation analysis in publicity context)
- Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010) (transformative-use analysis in right-of-publicity context)
- Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (Supreme Court 2011) (video games receive First Amendment protection as expressive works)