Lead Opinion
OPINION
Video games are entitled to the full protections of the First Amendment, because
The district court concluded that the game developer, Electronic Arts (“EA”), had no First Amendment defense against the right-of-publicity claims of the football player, Samuel Keller. We affirm. Under the “transformative use” test developed by the California Supreme Court, EA’s use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown. The other First Amendment defenses asserted by EA do not defeat Keller’s claims either.
I
Samuel Keller was the starting quarterback for Arizona State University in 2005 before he transferred to the University of Nebraska, where he played during the 2007 season. EA is the producer of the NCAA Football series of video games, which allow users to control avatars representing college football players as those avatars participate in simulated games. In NCAA Football, EA seeks to replicate each school’s entire team as accurately as possible. Every real football player on each team included in the game has a corresponding avatar in the game with the player’s actual jersey number and virtually identical height, weight, build, skin tone, hair color, and home state. EA attempts to match any unique, highly identifiable playing behaviors by sending detailed questionnaires to team equipment managers. Additionally, EA creates realistic virtual versions of actual stadiums; populates them with the virtual athletes, coaches, cheerleaders, and fans realistically rendered by EA’s graphic artists; and incorporates realistic sounds such as the crunch of the players’ pads and the roar of the crowd.
EA’s game differs from reality in that EA omits the players’ names on their jerseys and assigns each player a home town that is different from the actual player’s home town. However, users of the video game may upload rosters of names obtained from third parties so that the names do appear on the jerseys. In such cases, EA allows images from the game containing athletes’ real names to be posted on its website by users. Users can further alter
In the 2005 edition of the game, the virtual starting quarterback for Arizona State wears number 9, as did Keller, and has the same height, weight, skin tone, hair color, hair style, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller. In the 2008 edition, the virtual quarterback for Nebraska has these same characteristics, though the jersey number does not match, presumably because Keller changed his number right before the season started.
Objecting to this use of his likeness, Keller filed a putative class-action complaint in the Northern District of California asserting, as relevant on appeal, that EA violated his right of publicity under California Civil Code § 3344 and California common law.
II
California’s anti-SLAPP statute is designed to discourage suits that “masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.” Batzel,
A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with, a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
Cal.Civ.Proc.Code § 425.16(b)(1). We have determined that the anti-SLAPP statute is available in federal court. Thomas v. Fry’s Elecs., Inc.,
We evaluate an anti-SLAPP motion in two steps. First, the defendant must “make a prima facie showing that the plaintiffs suit arises from an act by the defendant made in connection with a public
Second, we must evaluate whether the plaintiff has “established] a reasonable probability that the plaintiff will prevail on his or her ... claim.” Batzel,
A
The California Supreme Court formulated the transformative use defense in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387,
Comedy III gives us at least five factors to consider in determining whether a work is sufficiently transformative to obtain First Amendment protection. See J. Thomas McCarthy, The Rights of Publicity and Privacy § 8:72 (2d ed.2012). First, if “the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized,” it is more likely to be transformative than if “the depiction or imitation of the celebrity is the very sum and substance of the work in question.” Comedy III,
We have explained that “[o]nly if [a defendant] is entitled to the [transformative] defense as a matter of law can it prevail on its motion to strike,” because the California Supreme Court “envisioned the application of the defense as a question of fact.” Hilton,
California courts have applied the trans-formative use test in relevant situations in four cases. First, in Comedy III itself, the California Supreme Court applied the test to T-shirts and lithographs bearing a likeness of The Three Stooges and concluded that it could “discern no significant trans-formative or creative contribution.” Id.
Second, in Winter v. DC Comics, the California Supreme Court applied the test to comic books containing characters Johnny and Edgar Autumn, “depicted as villainous half-worm, half-human offspring” but evoking two famous brothers, rockers Johnny and Edgar Winter.
Third; in Kirby v. Sega of America, Inc., the California Court of Appeal applied the transformative use test to a video game in which the user controls the dancing of “Ulala,” a reporter from outer space allegedly based on singer Kierin Kirby, whose “ ‘signature’ lyrical expression ... is ‘ooh la la.’ ”
Finally, in No Doubt v. Activision Publishing, Inc., the California Court of Appeal addressed Activision’s Band Hero video game.
We have also had occasion to apply the transformative use test. In Hilton v. Hallmark Cards, we applied the test to a birthday card depicting Paris Hilton in a manner reminiscent of an episode of Hilton’s reality show The Simple Life.
With these cases in mind as guidance, we conclude that EA’s use of Keller’s likeness does not contain significant trans-formative elements such that EA is entitled to the defense as a matter of law. The facts of No Doubt are very similar to those here. EA is alleged to have replicated Keller’s physical characteristics in NCAA Football, just as the members of No Doubt are realistically portrayed in Band Hero. Here, as in Band Hero, users manipulate the characters in the performance of the same activity for which they are known in real life — playing football in this case, and performing in a rock band in Band Hero. The context in which the activity occurs is also similarly realistic — real venues in Band Hero and realistic depictions of actual football stadiums in NCAA Football. As the district court found, Keller is represented as “what he was: the starting quarterback for Arizona State” and Nebraska, and “the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.” Keller v. Elec. Arts, Inc., No. C 09-1967 CW, 2010 WL 5S0108, at *5 (N.D.Cal. Feb. 8, 2010).
EA argues that the district court erred in focusing primarily on Keller’s likeness and ignoring the transformative elements of the game as a whole. Judge Thomas, our dissenting colleague, suggests the same. See Dissent at 1285. We are unable to say that there was any error, particularly in light of No Doubt, which reasoned much the same as the district court in this case: “that the avatars appear in the context of a videogame that contains many other creative elements[] does not transform the avatars into anything other than exact depictions of No Doubt’s members doing exactly what they do as celebrities.” No Doubt,
[I]t is the differences between Kirby and the instant case ... which are determinative. In Kirby, the pop singer was portrayed as an entirely new character — the space-age news reporter Ulala. In Band Hero, by contrast, no matter what else occurs in the game during the depiction of the No Doubt avatars, the avatars perform rock songs, the same activity by which the band achieved and maintains its fame. Moreover, the avatars perform those songs as literal recreations of the band members. That the avatars can be manipulated to perform at fanciful venues including outer space or to sing songs the real band would object to singing, or that the avatars appear in the context of a video-game that contains many other creative elements, does not transform the avatars into anything other than exact depictions of No Doubt’s members doing exactly what they do as celebrities.
Id. at 410-11. Judge Thomas says that “[t]he Court of Appeal cited character immutability as a chief factor distinguishing [No Doubt] from Winter and Kirby.” Dissent at 1287. Though No Doubt certainly mentioned the immutability of the avatars, we do not read the California Court of Appeal’s decision as turning on the inability of users to alter the avatars. The key contrast with Winter and Kirby was that in those games the public figures were transformed into “fanciful, creative characters” or “portrayed as ... entirely new character[s].” No Doubt,
As we have, the Third Circuit considered the potentially transformative nature of the game as a whole, id. at 166,169, and the user’s ability to alter avatar characteristics, id. at 166-68. Asserting that “the lack of transformative context is even more pronounced here than in No Doubt,” id. at 166, and that “the ability to modify the avatar counts for little where the appeal of the game lies in users’ ability to play as, or alongside[,] their preferred players or team,” id. at 168 (internal quotation marks omitted), the Third Circuit agreed with us that these changes do not render the NCAA Football games sufficiently transformative to defeat a right-of-publicity claim.
Judge Ambro dissented in Hart, concluding that “the creative components of NCAA Football contain sufficient expressive transformation to merit First Amendment protection.” Id. at 175 (Am-bro, J., dissenting). But in critiquing the majority opinion, Judge Ambro disregarded No Doubt and Kirby because “they were not decided by the architect of the Transformative Use Test, the • Supreme Court of California.” Id. at 172 n. 4. He thus “d[id] not attempt to explain or distinguish the[se cases’] holdings except to note that [he] believe[s] No Doubt, which focused on individual depictions rather than the work in its entirety, was wrongly decided in light of the prior precedent in Comedy III and Winter.” Id. We recognize that we are bound only by the decisions of a state’s highest court and not by decisions of the state’s intermediate appellate court when considering statelaw issues sitting in diversity jurisdiction. See In re Kirkland,
Given that NCAA Football realistically portrays college football. players in the context of college football games, the district court was correct in concluding that EA cannot prevail as a matter of law based on the transformative use defense at the anti-SLAPP stage. Cf. Hilton,
B
EA urges us to adopt for right-of-publicity claims the broader First Amendment defense that we have previously adopted in the context of false endorsement claims under the Lanham Act: the Rogers test.
Rogers v. Grimaldi is a landmark Second Circuit case balancing First Amendment rights against claims under the Lanham Act.
The Rogers court recognized that “[mjovies, plays, books, and songs are all indisputably works of artistic expression and deserve protection,” but that “[tjhe purchaser of a book, like the purchaser of a can of peas, has a right not to be misled as to the source of the product.” Id. “Consumers of artistic works thus have a dual interest: They have an interest in not being misled and they also have an interest in enjoying the results of the author’s freedom of expression.” Id. at 998. The Rogers court determined that titles of artistic or literary works were less likely to be misleading than “the names of ordinary commercial products,” and thus that Lanham Act protections applied with less rigor when considering titles of artistic or literary works than when considering ordinary products. Id. at 999-1000. The court concluded that “in general the Act should be construed to apply to artistic works only
In the context of allegedly misleading titles using a celebrity’s name, that balance will normally not support application of the [Lanham] Act unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.
Id.
We first endorsed the Rogers test for Lanham Act claims involving artistic or expressive works in Mattel, Inc. v. MCA Records, Inc.,
In this case, EA argues that we should extend this test, created to evaluate Lanham Act claims, to apply to right-of-publicity claims because it is “less prone to misinterpretation” and “more protective of free expression” than the transformative use defense. Although we acknowledge that there is some overlap between the transformative use test formulated by the California Supreme Court and the Rogers test, we disagree that the Rogers test should be imported wholesale for right-of-publicity claims. Our conclusion on this point is consistent with the Third Circuit’s rejection of EA’s identical argument in Hart. See Hart,
Often considerable money, time and energy are needed to develop one’s prominence in a particular field. Years of labor may be required before one’s skill, reputation, notoriety or virtues are sufficiently developed to permit an economic return through some medium of commercial promotion. For some, the investment may eventually create considerable commercial value in one’s identity.
Id.
We recognize that Rogers also dealt with a right-of-publieity claim-one under Oregon law — and applied a modified version of its Lanham Act test in order to adapt to that particular context:
In light of the Oregon Court’s concern for the protection of free expression, ... the right of publicity [would not] bar the use of a celebrity’s name in a movie title unless the title was “wholly unrelated” to the movie or was “simply a disguised commercial advertisement for the sale of goods or services.”
Lastly, we note that the only circuit court to import the Rogers test into the publicity arena, the Sixth Circuit, has done so inconsistently. In Parks v. LaFace Records, the Sixth Circuit indicated that the Rogers test was appropriate for right-of-publicity claims, noting that the Restatement (Third) of Unfair Competition had endorsed use of the test in that context.
C
California has developed two additional defenses aimed at protecting the reporting of factual information under state law. One of these defenses only applies to common law right-of-publicity claims while the other only applies to statutory right-of-publicity claims. Montana v. San Jose Mercury News, Inc.,
EA argues that these defenses give it the right to “incorporate athletes’ names, statistics, and other biographical information” into its expressive works, as the defenses were “designed to create ‘extra breathing space’ for the use of a person’s name in connection with matters of public interest.” Keller responds that the right of publicity yields to free use of a public figure’s likeness only to the extent reasonably required to report information to the public or publish factual data, and that the defenses apply only to broadcasts or accounts of public affairs, not to EA’s NCAA Football games, which do not contain or constitute such reporting about Keller.
.California courts have generally analyzed the common law defense and the statutory defense separately, but it is clear that both defenses protect only the act of publishing or reporting. By its terms, § 3344(d) is limited to a “broadcast or account,” and we have confirmed that the common law defense is about a publication or reporting of newsworthy items. Hilton,
For instance, in Dora v. Frontline Video, Inc., a wellknown surfer sued the producer of a documentary on surfing entitled “The Legends of Malibu,” claiming misappropriation of his name and likeness.
We think that, unlike in Gionjriddo, Montana, and Dora, EA is not publishing or reporting factual data. EA’s video game is a means by which users can play their own virtual football games, not a means for obtaining information about real-world football games. Although EA has incorporated certain actual player information into the game (height, weight, etc.), its case is considerably weakened by its decision not to include the athletes’ names along with their likenesses and statistical data. EA can hardly be considered to be “reporting” on Keller’s career at Arizona State and Nebraska when it is not even using Keller’s name in connection with his avatar in the game. Put simply, EA’s interactive game is not a publication of facts about college football; it is a game, not a reference source. These state law defenses, therefore, do not apply.
Under California’s transformative use defense, EA’s use of the likenesses of college athletes like Samuel Keller in its video games is not, as a matter of law, protected by the First Amendment. We reject EA’s suggestion to import the Rogers test into the right-of-publicity arena, and conclude that statelaw defenses for the reporting of information do not protect EA’s use.
AFFIRMED.
Notes
. In Brown v. Electronic Arts, Inc., No. 09-56675;
. There are actually nine named plaintiffs, all former National Collegiate Athletic Association ("NCAA”) football or basketball players: Keller, Edward O'Bannon, Jr. (UCLA), Byron Bishop (University of North Carolina), Michael Anderson (University of Memphis), Danny Wimprine (University of Memphis), Ishmael Thrower. (Arizona State University), Craig Newsome (Arizona State University), Damien Rhodes (Syracuse University), and Samuel Jacobson (University of Minnesota). EA's NCAA basketball games are also implicated in this appeal. Because the issues are the same for each plaintiff, all of the claims are addressed through our discussion of Keller and NCAA Football.
. We review de novo the district court’s denial of a motion to strike under California’s antiSLAPP statute. Mindys Cosmetics, Inc. v. Dakar,
. The elements of a right-of-publicity claim under California common law are: “(1) the defendant’s use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” Stewart v. Rolling Stone LLC,
. Just as we did in Hilton v. Hallmark Cards, we reserve the question of whether the First Amendment furnishes a defense other than those the parties raise.
. We also briefly addressed the transformative use test in a footnote in Hoffman v. Capital Cities/ABC, Inc.,
. Judge Thomas argues that the "sheer number of virtual actors,” the absence of "any evidence as to the personal marketing power of Sam Keller,” and the relative anonymity of each individual player in NCAA Football as compared to the public figures in other California right-of-publicity cases all mitigate in favor of finding that the EA’s First Amendment rights outweigh Keller's right of publicity. See Dissent at 1286-88. These facts are not irrelevant to the analysis — they all can be considered in the framework of the five considerations from Comedy III laid out above — but the fact is that EA elected to use avatars that mimic real college football players for a reason. If EA did not think there was value in having an avatar designed to mimic each individual player, it would not go to the lengths it does to achieve realism in this regard. Having chosen to use the players' likenesses, EA cannot now hide behind the numerosity of its potential offenses
. EA further argues that No Doubt is distinguishable because the video game company in that case entered into a license agreement which it allegedly breached. However, the California Court of Appeal did not rely on breach of contract in its analysis of whether the game was transformative.
. In dissent, Judge Thomas suggests that this case is distinguishable from other right-to-publicity cases because "an individual college athlete’s right of publicity is extraordinarily circumscribed and, in practical reality, nonexistent” because "NCAA rules prohibit athletes from benefitting economically from any success on the field.” Dissent at 1289. Judge Thomas commendably addresses the fairness of this structure, see Dissent at 1289 n. 5, but setting fairness aside, the fact is that college athletes are not indefinitely bound by NCAA rules. Once an athlete graduates from college, for instance, the athlete can capitalize on his success on the field during college in
. Judge Thomas asserts that "[t]he logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context,” "jeopardiz[ing] the creative use of historic figures in motion pictures, books, and sound recordings.” Dissent at 1290. We reject the notion that our holding has such broad consequences. As discussed above, one of the factors identified in Comedy III "requires an examination of whether a likely purchaser’s primary motivation is to buy a reproduction of the celebrity, or to buy the expressive work of that artist.” McCarthy, supra, § 8:72; see Comedy III,
. Keller argues that EA never asked the district court to apply Rogers and has therefore waived the issue on appeal. Although it could have been more explicit, EA’s antiSLAPP motion did cite Rogers and argue that Keller had not alleged that his likeness was "wholly unrelated” to the content of the video game or a "disguised commercial advertisement,” the two prongs of -the Rogers test.
. We similarly reject Judge Thomas’s argument that Keller's right-of-publicity claim should give way to the First Amendment in light of the fact that “the essence of NCAA Football is founded on publicly available data.” Dissent at 1288. Judge Thomas compares NCAA Football to the fantasy baseball products that the Eighth Circuit deemed protected by the First Amendment in the face of a right-of-publicity claim in C.B.C. Distribution and Marketing,
Dissenting Opinion
dissenting:
Because the creative and transformative elements of Electronic Arts’ NCAA Football video game series predominate over the commercial use of the athletes’ likenesses, the First Amendment protects EA from liability. Therefore, I respectfully dissent.
I
As expressive works, video games are entitled to First Amendment protection. Brown v. Entm’t Merchs. Ass’n, — U.S. -,
Where it is recognized, the tort of appropriation is a creature of common law or statute, depending on the jurisdiction. However, the right to compensation for the misappropriation for commercial use of one’s image or celebrity is far from absolute. In every jurisdiction, any right of publicity must be balanced against the constitutional protection afforded by the First Amendment. Courts have employed a variety of methods in balancing the rights. See, e.g., Doe v. TCI Cablevision,
As the majority properly notes, the transformative use defense is “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity like
The five considerations articulated in Comedy III, and cited by the majority, are whether: (1) the celebrity likeness is one of the raw materials from which an original work is synthesized; (2) the work is primarily the defendant’s own expression if the expression is something other than the likeness of the celebrity; (3) the literal and imitative or creative elements predominate in the work; (4) the marketability and economic value of the challenged work derives primarily from the fame of the celebrity depicted; and (5) an artist’s skill and talent has been manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit the celebrity’s fame. Id.
Although these considerations are often distilled as analytical factors, Justice Mosk was careful in Comedy III not to label them as such. Indeed, the focus of Comedy III is a more holistic examination of whether the transformative and creative elements of a particular work predominate over commercially based literal or imitative depictions. The distinction is critical, because excessive deconstruction of Comedy III can lead to misapplication of the test. And it is at this juncture that I must respectfully part ways with my colleagues in the majority.
The majority confines its inquiry to how a single athlete’s likeness is represented in the video game, rather than examining the transformative and creative elements in the video game as a whole. In my view, this approach contradicts the holistic analysis required by the transformative use test. See Hart v. Elec. Arts, Inc.,
When EA’s NCAA Football video game series is examined carefully, and put in proper context, I conclude that the creative and transformative elements of the games predominate over the commercial use of the likenesses of the athletes within the games.
A
The first step in conducting a balancing is to examine the creative work at issue. At its essence, EA’s NCAA Football is a work of interactive historical fiction. Although the game changes from year to year, its most popular features predominately involve role-playing by the gamer. For example, a player can create a virtual image of himself as a potential college football player. The virtual player decides which position he would like to play, then participates in a series of “tryouts” or competes in an entire high school season to gauge his skill. Based on his performance, the virtual player is ranked and available to play at select colleges. The player chooses among the colleges, then assumes the role of a college football player. He
The college teams that are supplied in the game do replicate the actual college teams for that season, including virtual athletes who bear the statistical and physical dimensions of the actual college athletes. But, unlike their professional football- counterparts in the Madden NFL series, the NCAA football players in these games are not identified.
The gamers can also change their abilities, appearances, and physical characteristics at will. Keller’s impressive physical likeness can be morphed by the gamer into an overweight and slow virtual athlete, with anemic passing ability. And the gamer can create new virtual players out of whole cloth. Players can change teams. The gamer could pit Sám Keller against himself, or a stronger or weaker version of himself, on a different team. Or the gamer could play the game endlessly without ever encountering Keller’s avatar. In the simulated games, the gamer controls not only the conduct of the game, but the weather, crowd noise, mascots, and other environmental factors. Of course, one may play the game leaving the players unaltered, pitting team against team. But, in this context as well, the work is one of historic fiction. The gamer controls the teams, players, and games.
Applying the Comedy III considerations to NCAA Football in proper holistic context, the considerations favor First Amendment protection. The athletic likenesses are but one of the raw materials from which the broader game is constructed. The work, considered as a whole, is primarily one of EA’s own expression. The creative and transformative elements predominate over the commercial use of likenesses. The marketability and economic value of the game comes from the creative elements within, not from the pure commercial exploitation of a celebrity image. The game is not a conventional portrait of a celebrity, but a work consisting of many creative and transformative elements.
The video game at issue is much akin to the creations the California Supreme Court found protected in Winter v. DC Comics,
No Doubt v. Activision Publishing, Inc.,
Unlike the majority, I would not punish EA for the realism of its games and for the skill of the artists who created realistic settings for the football games. Majority op. at 1279 n. 10. That the lifelike roar of the crowd and the crunch of pads contribute to the gamer’s experience demonstrates how little of NCAA Football is driven by the particular likeness of Sam Keller, or any of the other plaintiffs, rather than by the game’s artistic elements.
In short, considering the creative elements alone in this case satisfies the trans-formative use test in favor of First Amendment protection.
B
Although one could leave the analysis with an examination of the transformative and creative aspects of the game, a true balancing requires an inquiry as to the other side of the scales: the publicity right at stake. Here, as well, the NCAA Football video game series can be distinguished from the traditional right of publicity cases, both from a quantitative and a qualitative perspective.
As a quantitative matter, NCAA Football is different from other right of publicity cases in the sheer number of virtual actors involved. Most right of publicity cases involve either one celebrity, or a finite and defined group of celebrities. Comedy III involved literal likenesses of the Three Stooges. Hilton v. Hallmark Cards, 599 F.3d 894, 909-12 (9th Cir.2009), involved the literal likeness of Paris Hilton. Winter involved the images of the rock star brother duo. Kirby involved the likeness of one singer. No Doubt focused on the likenesses of the members of a specific legendary band.
In contrast, NCAA Football includes not just Sam Keller, but thousands of virtual actors. This consideration is of particular significance when we examine, as instructed by Comedy III, whether the source of the product marketability comes from creative elements or from pure exploitation of a celebrity image.
The sheer quantity of the virtual players in the game underscores the inappropriateness of analyzing the right of publicity through the lens of one likeness only. Only when the creative work is considered in complete context can a proper analysis be conducted.
As a qualitative matter, the essence of NCAA Football is founded on publicly available data, which is not protected by any individual publicity rights. It is true that EA solicits and receives information directly from colleges and universities. But the information is hardly proprietary. Personal vital statistics for players are found in college programs and media guides. Likewise, playing statistics are easily available. In this respect, the information used by EA is indistinguishable from the information used in fantasy athletic leagues, for which the First Amendment provides protection, C.B.C. Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, L.P.,
Further, the structure of the game is not founded on exploitation of an individual’s publicity rights. The players are unidentified and anonymous. It is true that third-party software is available to quickly identify the players, but that is not part of the EA package. And the fact that the players can be identified by the knowledgeable user by their position, team, and statistics is somewhat beside the point. The issue is whether the marketability of the product is driven by an individual celebrity, or by the game itself. Comedy III,
In sum, even apart from consideration of transformative elements, examination of the right of publicity in question also resolves the balance in favor of the First Amendment. The quantity of players involved dilutes the commercial impact of any particular player and the scope of the publicity right is significantly reduced by the fact that: (1) a player cannot own the individual, publicly available statistics on which the game is based; (2) the players are not identified in the game; and (3) NCAA college athletes do not have the right to license their names and likenesses, even if they chose to do so.
II
Given the proper application of the transformative use test, Keller is unlikely to prevail. The balance of interests falls squarely on the side of the First Amend
For these reasons, I respectfully dissent.
. I agree with the majority that the test articulated in Rogers v. Grimaldi,
. I agree fully with Judge Ambro's excellent dissent in Hart, which describes the analytic flaws of applying a transformative use test outside the context of the work as a whole.
. Of course, to the extent that the Court of Appeal's opinion in No Doubt may be read to be.in tension with the transformative use test as articulated by the California Supreme Court in Comedy HI and Winter, it must yield.
. Contrary to the majority’s suggestion, I do not claim that any use of a likeness founded on publicly available information is transformative. Majority op. 1283-84 n. 12. The majority's analogy to a commercial featuring Tom Brady is inapposite for at least two reasons: (1) a commercial is not interactive in the same way that NCAA Football is, and (2) Brady’s marketing power is well established, while that of the plaintiffs is not.
. The issue of whether this structure is fair to the student athlete is beyond the scope of this appeal, but forms a significant backdrop to the discussion. The NCAA received revenues of $871.6 million in fiscal year 2011-12, with 81% of the money coming from television and marketing fees. However, few college athletes will ever receive any professional compensation. The NCAA reports that in 2011, there were 67,887 college football players. Of those, 15,086 were senior players, and only 255 athletes were drafted ,for a professional team. Thus, only 1.7% of seniors received any subsequent professional economic compensation for their athletic endeavors. NCAA, Estimated Probability of Competing in Athletics Beyond the High School Interscholastic Level (2011), available at http://www.ncaa. org/wps/wcm/connect/public/ncaa/pdfs/2011/ 2011+ probability + of + going+pro.
And participation in college football can come at a terrible cost. The NCAA reports that, during a recent five-year period, college football players suffered 41,000 injuries, including 23 non-fatal catastrophic injuries and 11 fatalities from indirect catastrophic injuries. NCAA, Football Injuries: Data From the 2004/05 to 2008/09 Seasons, available at http:// www.ncaa.org/wps/wcm/connect/public/ncaa/ health + and + safety/sports + injuries/ resources/football + injuries.
. While acknowledging that these considerations are relevant to the Comedy III analysis, the majority says EA's use of realistic likenesses demonstrates that it sees "value in having- an avatar designed to mimic each individual player.” Majority op. at 1276 n. 7. But the same is true of any right of publicity case. The defendants in Winter saw value in using comic book characters that resembled the Winter brothers. Andy Warhol — whose portraits were discussed in Comedy III — saw value in using images of celebrities such as Marilyn Monroe. In those cases, the products' marketability derives primarily from the creative elements, not from a pure commercial exploitation of a celebrity image. The same is ■true of NCAA Football.
. See, e.g., ETW Corp. v. Jireh Publ’g, Inc.,