Keller v. Electronic Arts: Court Finds that Electronic Arts' Use of Personal Traits in Video Games Violated College Footballer's Rights of Publicity
Digital media law update: Players have long complained about the lack of compensation they receive when risking their bodies in service of the multi-billion dollar business of college football. However, a court in the Northern District of California has drawn a line in the sand for at least one type of exploitation of their talents. In a February 8, 2010 ruling, Judge Claudia Wilken held that Electronic Arts could be held liable for violating college players' rights of publicity for using their personal characteristics in its NCAA Football video game. While this was only a preliminary ruling, a loss for Electronic Arts (EA) could have big money implications, putting it on the hook to pay for use of player images in games already distributed and requiring it to get licenses before creating future editions.
The case is a class action entitled Keller v. Electronic Arts, Inc., Northern District of California, No 4:09-cv-01967. Electronics Arts, which is based in the Los Angeles area, is the world's largest manufacturer of videogame software. In 2009, its gross revenues exceeded $4 billion on the strength of titles such as Madden NFL. Among its many sports titles is NCAA Football, a game which enables players to recreate football matches between college teams.
According to the complaint, EA designs NCAA Football to include characters that resemble real-life college athletes. The virtual players "share the same jersey numbers, have similar physical characteristics and come from the same home state." While EA omits the players' names, game users allegedly can "access online services to download team rosters and the athletes' names and upload them into the games." The complaint further charges that in recent versions, EA has included features to facilitate the upload of this data.
The complaint alleged that EA's actions violated the players' rights of publicity. California law contains both statutory and common law causes of action for violation rights of publicity. California's right of publicity statute provides that "any person who knowingly uses another's name, voice, signature, photograph or likeness, or in any manner, on or in products, merchandise, or goods . . . shall be liable for any damages sustained by the person or persons injured as a result." Cal. Civ. Code § 3344(a).
Electronic Arts conceded that the allegations in the complaint stated a claim for violation of their rights of publicity. However, EA countered that the players' rights of publicity claims were barred by the doctrines of transformative use and public interest use and a statutory "reporting" exception.
Judge Wilken disagreed.
Under the transformative use defense, a work is considered protected by the First Amendment if it contains "significant transformative elements" or "the value of the work does not derive primarily from the celebrity's fame." See Hilton v. Hallmark Cards, 580 F.3d 874, 889 (9th Cir. 2009). For example, a court found that this doctrine protected a comic book publisher whose mags depicted musicians Jonny and Edgar Winter as half-human, half-worm cartoon characters, and renamed them Johnny and Edgar Autumn.
Here, Judge Wilken found that EA's depiction of name plaintiff Keller, a former ASU and Nebraska quarterback, was not sufficiently transformative. According to Judge Wilken, "In the game, the quarterback for Arizona State University shares many of Plaintiff's characteristics. For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state. . . . EA does not depict Plaintiff in a different form; he is represented as what he was: the starting quarterback for Arizona State University."
The public interest defense, true to its name, bars a right of publicity claim for matters that are in the public interest. Courts have given the term "public interest" a very wide definition and found that it attaches to people "who by their accomplishments or mode of living create a bona fide attention to their activities." Hilton, 580 F.3d at 892. Based on this doctrine, courts have denied right of publicity claims by athletes who sought damages for the use of their names and statistics on websites or posters, finding that these forms of media merely make "historical facts available to the public." See Gionfriddo v. Major League Baseball, 94 Cal.App. 4th 400, 415 (2001). The doctrine has also been used to shield the use of player names and stats in fantasy football games, because the results in such games depend on the players' historical performances, so that they effectively are a form of commentary on those performances. See C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, 505 F.3d 818 (8th Cir. 2007)
But here, the Judge Wilken found that EA's NCAA Football was not merely providing historical information about actual events in game form. "Success in "NCAA Football" does not depend on updated reports of the real-life players' progress during the college football season," she stated. "Further, EA's game provides more than just the players' names and statistics; it offers a depiction of the student athletes' physical characteristics and . . . enables consumers to control the virtual players on a simulated football field."
Judge Wilken also rejected the "statutory reporting" defense, finding that it only applied to reporting as understood in the traditional sense of relating actual historical events. See California Civil Code § 3344(d). According to Judge Wilken, "EA is not entitled to the statutory reporting defense because its use of Plaintiffs' image and likeness extended beyond reporting information about him."
Judge Wilken's decision solely dealt with the sufficiency of the parties' allegations in their initial pleadings. A trial of the matter, which would involve a detailed review of the relevant evidence could produce a different result for EA. However, this case bears watching, since the ultimate resolution should help clarify how closely a video game avatar can be modeled on a real life character before creating right of publicity liability.
