The Supreme Court passed on an opportunity to review a recent appellate court decision holding that a video game publisher is not protected by the First Amendment for using the likenesses of former NFL football stars in the widely popular Madden NFL video game series.

In the video game versions at issue, published by EA Sports, the players are not expressly mentioned by name. Rather, the players’ in-game “avatars” bear many similarities to their real-word counterparts who used to play in the NFL. Those similarities including things such as age, weight, skin color, and other information that would allow a video gamer to readily “connect the dots.” The Court of Appeals for the Ninth Circuit held that this use of the players’ likenesses was not protected by the First Amendment because, in essence, the use was not sufficiently “transformative.” According to the Court, the use of the players’ likenesses in the video games is simply another reproduction of what these gridiron gladiators did. These NFL footballers played football. Madden NFL Football players do likewise and, thus, the video games do not inject anything new, novel or different into the basic professional football paradigm.

The Supreme Court’s decision to pass on the case is noteworthy. First, the last time the Court considered a case involving publicity rights was back when the typewriter was still very much en vogue technology (1977). That dispute involved a television broadcast of a performer’s entire act for which he claimed he was owed compensation. The present dispute involving the Madden NFL franchise seems to have little—if any—commonality with that dispute from several decades ago. So, it would have been enlightening to hear from the Court as to how these rights interplay with modern day commercial products such as video games. Second, as pointed out by 31 law professors who submitted a brief to the Court in support of taking the case, there are numerous legal “tests” being used throughout the land to assess whether the First Amendment is implicated in these types of video game and sports fantasy cases. This uncertainty may lead to “chilled” speech. The Court could have used the Madden NFL case to harmonize these disparate legal tests and provide much needed guidance on the issue. For now, though, we will simply have to wait and see if some other right of publicity case makes its way to the ultimate judicial gridiron.