Yesterday, January 14, 2014, the U.S. Supreme Court denied the NCAA’s motion to intervene in the long-running likeness litigation between Electronic Arts and college athletes featured in Electronic Arts series of NCAA college football products, Keller v. Electronic Arts Inc., 724 F.3d 1268 (9th Cir. 2013).
As previously noted, the Ninth Circuit ruled against EA’s use of the players’ likenesses in its games, holding that the First Amendment did not protect against state law right of publicity claims. In applying the “transformative use test” to EA’s games, the Ninth Circuit found that EA’s use was not sufficiently transformative.
Subsequent to this ruling, Electronic Arts filed a writ of certiorari with the Supreme Court (No. 13-377), and then subsequently announced that it had reached a settlement with the plaintiffs.
The NCAA had sought to intervene as it is concerned that once the settlement that EA has agreed to is approved, EA’s writ will be dismissed, and the issues arising from the Ninth Circuit’s decision will not be heard by the Supreme Court.
While it would be nice to have the Supreme Court review the issues arising from the Keller case, it appears that may not happen. As such, while courts appear to agree that video games are entitled to First Amendment protection, the courts seem to be making a distinction between the applicability of the Rogers test to only federal Lanham Act claims and the transformative use test with respect to state right-of-publicity claims.