The Northern District of California recently denied Electronic Art's motion to dismiss a right of publicity claim brought against it by former college football player Sam Keller. The dispute was over the use by EA of Keller's college jersey number, physical characteristics, and other identifiers (such as home state) in EA's NCAA Football video game. EA argued that its use of Keller's likeness was a defensible violation of Keller's right of publicity under two different First Amendment arguments: (a) that the use was transformative; and/or (b) that it was merely publishing matters in the public interest (i.e., reporting newsworthy information). In finding that the use was not transformative, the court noted that when looking at the use of Keller's likeness,rather than the game as a whole, EA has shown Keller "as what he was: the starting quarterback for Arizona State University." In finding that the use was not merely news reporting, the court distinguished from fantasy football games (where use of player stats has been found to be protected under the First Amendment). In particular, unlike a fantasy football game where the reporting on the actual facts is necessary for a participant's success in the fantasy football game, in NCAA Football, a video game player's success was not dependent on the real-life facts. Moreover, the court noted, EA had provided more than just the bare facts, but had also included other elements, such as the college and university players' physical characteristics and home states.
TIP: If you are considering using a celebrity's name or likeness in your advertisement, take care if you believe that your use is protected by the First Amendment as such a defense is quite limited.