A panel of three federal judges -- Sidney ThomasJay Bybee and Gordon Quist – from the United States Court of Appeals for the Ninth Circuit recently stopped former NFL great Jim Brown in his tracks. Given the three judges’ average age – 65 – that’s pretty impressive.  Most NFL linebackers couldn’t do as much during Brown’s playing days. 

Of course, the judges didn’t actually tackle Brown, they just delivered a bone crushing blow to his lawsuit against EA Sports. EA Sports makes the Madden NFL video games series. The games feature current NFL players as well as former stars. EA uses the names and likenesses of  current players under an agreement with the NFL Players Association. But former players like Brown aren’t covered by that agreement.

Brown filed the suit, contending that EA’s use of his likeness and statistics (the game doesn’t actually use his name) violated the federal Lanham Act. Brown said by using his likeness, EA confused consumers as to whether Brown endorsed the video games. And a false endorsement violates the Lanham Act.

A threshold question for the court was whether the games were “expressive” works.  They are. In a case involving California’s efforts to regulated violent video games, the U.S. Supreme Court ruled that video games are “expressive.”   

Once the court found the video games constituted “expressive" works, the next question was whether EA’s use of Brown’s likeness was “artistically relevant.”   Brown claimed that his likeness was “artistically irrelevant” to the Madden game, and so not protected by the “expressive work” doctrine. But Brown’s argument didn’t fly. In the court’s view, the artistic relevance only need be “more than zero” – a pretty low standard. And EA’s efforts to realistically portray the games meant it needed to use the likeness of actual players – current and former. 

But the court needed to answer one more question – whether the use of Brown’s likeness  would explicitly mislead the public to believe Brown was endorsing the games. Brown offered the court consumer surveys that showed consumers were confused. But that evidence wasn’t sufficient, and really missed the point. According to the court, the issue isn’t the effect of the use, it is, rather the intent. Absent some proof that EA sought to cash in on Brown’s likeness, he couldn’t make his case. And given that Brown was one of 50 all-time NFL greats used in the series, he couldn’t convince the court that he was the centerpiece. 

Brown may not be completely out of luck.  The court’s opinion was limited to his Lanham Act claim. The court noted that Brown may have other claims, such as common law right of publicity. But for now, the irresistible force apparently lost out to the immovable object.