In a post last week, we discussed the right of publicity and how it should be applied to college students when their names and likenesses are used in video games. In the class action lawsuit against Electronic Arts last year, EA argued that the use of the players' images was protected by the First Amendment. The 9th Circuit disagreed though, effectively shooting down EA's defense.
But it appears as if EA is once against trying to use this defense, this time for its use of retired NFL players in the Madden video game franchise. In 2010, three retired NFL players filed a lawsuit against the video game producer for using their likenesses in Madden 2009. The former football players argued that EA got out of paying the players' licensing fees by changing names and other information, even though the avatars in the game resembled the former football players.
Much as it did in its case involving college athletes, EA is urging the district court to consider giving the video game protection under the First Amendment. As EA explains, a lot of designing went into making the game, which should be considered a creative work and therefore protected by the law. The plaintiffs in the case disagree however, pointing out that "EA admits that it used protectable likenesses without [the players'] permission."
Even though it's relatively impossible to predict how the 9th Circuit Court will decide in this case, it's possible, considering the success of the right-of-publicity case involving college athletes, that EA may be held liable for damages against former professional athletes as well for the same premise. Our California readers will have to wait and see if this will happen in this case though.
Source: Courthouse News Service, "Does 'Madden' Transform NFL Retirees? 9th Circ. Asks," Maria Dinzeo, Sept. 12, 2014