On January 6, 2015, the Ninth Circuit decided that Electronic Arts Inc.’s (“EA”) unauthorized use of former NFL players’ likeness as avatars in the Madden NFL video game series does not qualify for First Amendment protection.  Davis v. Elec. Arts Inc., 2015 BL 1633 (9th Cir. Jan. 06, 2015).  It thus affirmed the lower court’s denial of EA’s motion to strike the plaintiffs’ California right of publicity action as a strategic lawsuit against public participation (SLAPP), under California’s anti-SLAPP statute.  This outcome is consistent with recent decisions that have also rejected EA’s attempt to overcome athletes’ right of publicity claims related to its simulated virtual reality sports video games on First Amendment grounds.  See Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013); Keller v. Elec. Arts Inc., 724 F.3d 1268 (9th Cir. 2013).  The Davis ruling is significant in its own right, however, as it addresses EA’s “incidental use” defense not at issue in Keller or Hart.

Generally speaking, California’s anti-SLAPP statute allows for early dismissal of claims that threaten free expression when allegations arise from acts performed in furtherance of the defendant’s right of petition or free speech in connection with a public issue.  See Cal. Civ. Proc. Code § 425.16(b)(1).  To defeat an anti-SLAPP motion to strike, California’s statute requires that the plaintiff establish a probability that it will prevail on its claim.  See id.  In Davis, the district court concluded, and the Ninth Circuit agreed, that plaintiffs established a reasonable probability of success on their right of publicity claim, rejecting EA’s assertion that it was barred by several different free speech-based defenses.

Davis reinforces the Ninth Circuit’s 2013 Keller decision.  Keller involved similar right of publicity claims brought by former college athletes related to the avatars appearing in EA’s NCAA Football video game series.  In Keller,the Ninth Circuit “held EA’s unauthorized use of a former college football player’s likeness was not, as a matter of law, protected by the First Amendment.”  Davis, 2015 BL 1633 at *1.  In Davis, the Ninth Circuit rejected the majority of EA’s First Amendment defenses because Keller had similarly disregarded “several of the First Amendment defenses EA raises here on materially indistinguishable grounds.”  Id.  During the appeal, EA asserted one additional defense, however, that it did not argue in Keller – that its use of former players’likenesses is protected as an “incidental use” under the First Amendment.  See id.

The Davis panel applied a four-factor test to assess the merits of EA’s incidental use defense: “(1) whether the use has a unique quality or value that would result in commercial profit to the defendant; (2) whether the use contributes something of significance; (3) the relationship between the reference to the plaintiff and the purpose and subject of the work; and (4) the duration, prominence or repetition of the name or likeness relative to the rest of the publication.” Id. at *6.  The Ninth Circuit determined that “[u]nder the first and second factors, the former players’ likenesses have unique value and contribute to the commercial value of Madden NFL.”  Id. at *7. In doing so, the Court reasoned that EA  pays money to license the likenesses of current NFL players in connection with MaddenNFL and has “acknowledged that the likenesses of current NFL players carry substantial commercial value.”  Id.  The Court also rejected EA’s argument that any one player’s likeness has only de minimis commercial value to the game as a whole.  Id.

Applying the third and fourth factors, the Ninth Circuit determined that “the former players’ likenesses are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL – to create an accurate virtual simulation of an NFL game.”  Id.  According to the Ninth Circuit, factors three and four cannot support an “incidental use” conclusion where“[a]ccurate depictions of the players on the field are central to the creation of an accurate virtual simulation of an NFL game.”  Id.  EA’s “incidental use” defense was, therefore, rejected in its entirety.

It remains to be seen whether this issue will make it as far as the Supreme Court.  Although EA previously filed petitions for writ of certiorari with the U.S. Supreme Court in Hart and Keller, it subsequently dismissed them pursuant to its settlement with the plaintiffs in those actions.  Davis is most probably next in line with respect to EA’s bid for Supreme Court review.  The Supreme Court has only once addressed the First Amendment in a right of publicity context (nearly four decades ago).  See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977).  But barring any future contrary Supreme Court directive, the collective message of Hart, Keller and Davis is clear – the unauthorized use of an athlete’s likeness as an avatar in the context of a virtual simulation sports video game is unlikely to be shielded by any theory of First Amendment protection.