Yesterday the US Court of Appeals for the Ninth Circuit ruled on two closely watched cases in the video game industry.

In James “Jim” Brown v. Electronic Arts, the Court affirmed the district court’s ruling that Electronic Arts’ (“EA”) use of Jim Brown’s likeness in its Madden series football game did not violate Section 43(a) of the Lanham Act (consumer confusion). Citing the Rogers test, the Court stated that video games are entitled to the same First Amendment protection as literature, plays or books, and held that in applying the Rogers test that Brown’s likeness is artistically relevant to the games and that there were no facts to support that EA explicitly misled consumers about Brown’s involvement in avoiding consumer confusion. The Court stated, “the public interest in free expression outweighs the public interest in avoiding consumer confusion.”

However, in a very similar case, In Re: NCAA Student-Athlete Name & Likeness Licensing Litigation (aka Keller v. Electronic Arts), the Ninth Circuit held that EA was not entitled to First Amendment protection with respect to its use of NCAA Student-Athletes in its NCAA football videogame as it applies to state right-of-publicity claims. The Court took pains to distinguish the state right of publicity claims from the federal Lanham claims in Brown. The Court held that with respect to the claims in Keller, the transformative use test is the correct standard to apply to state right-of-publicity claims. Applying this test, the Court (citing the Third Circuit’s similar decision in Hart v. Electronic Arts) held that EA’s use of Keller’s likeness was not sufficiently transformative, and that EA is not, as a matter of law, protected by the First Amendment. The Court also refused to apply the Rogers test to right-of-publicity claims as urged by EA.

It will be interesting to see if there are appeals in either of these cases, as the circuit 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. In both, the courts are recognizing that video games are entitled to First Amendment protections, but the extent of that protection is now dependent on the nature of the claim that is brought.