Electronic Arts is not giving up and has filed a certiorari petition with the U.S. Supreme Court seeking review of the Ninth Circuit Court of Appeals’ decision that the publicity rights of current and former National Football League players trumps the video game maker’s First Amendment right to use their likenesses in Madden NFL.
Michael Davis sued in 2010, alleging that the use of thousands of likenesses of current and former NFL players in the popular video game violated their right of publicity. A federal court judge ruled that EA’s use was not sufficiently transformative to receive First Amendment protection, as the video game depicted them realistically, with their actual height, weight, team, position, uniform number, skill set, and skin tone, among other characteristics.
In January, the federal appellate panel sided with the players, ruling that EA’s use of their images was not transformative enough to trigger the protections of the First Amendment.
Not taking no for an answer, EA recently filed a writ of certiorari with the justices, arguing that other courts use a different test and do not rely strictly on the “transformative” factor, or handle such claims on a case-by-case basis.
“These conflicting legal rules have real-world consequences: without this court’s guidance, artists, musicians and other content creators will remain unsure what standards apply to their expression and, in particular, whether realistic depiction of real individuals is tortious,” EA wrote. “This court’s review also is warranted because the Ninth Circuit’s decision—which allows a state to impose tort liability for non-commercial expression that portrays a person realistically—is both wrong and dangerous.”
Allowing the ruling to stand would create a chilling effect on the creative industry, EA told the Court, and adversely impact depictions of historical figures or events, unauthorized biographies, and works of historical fiction, among other examples.
To read the writ of certiorari in Electronic Arts v. Davis, click here.
Why it matters: In its cert petition, EA framed the question for the Court as: “Whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.” The company argued that the collision of the state law tort and the First Amendment “has engendered conflict and disarray among the lower courts,” adding that the “Court’s guidance is urgently needed.” Whether the justices accept the case remains to be seen.