The inclusion of a character in a videogame that corresponded to a student athlete is actionable under the California right of publicity statute, a district court held. The court rejected the videogame producer's defense that the use of the character was protected by the First Amendment. The court found that the videogame character was not sufficiently transformative because it corresponded to the athlete's sport, collegiate team, playing position, jersey number, height, weight and home state, and was depicted in the same setting, collegiate sports, in which the athlete functioned during his sports career. The court also rejected several other defenses, including the argument that the inclusion of the characters was protected by the First Amendment interest in reporting athletic performances.

Keller v. Electronic Arts, Inc., 2010 U.S. Dist. LEXIS 10719 (N.D. Cal. Feb. 8, 2010) Download PDF