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Brown v. Electronic Arts, Inc.

United States Court of Appeals for the Ninth Circuit
724 F.3d 1235 (2013)


James Brown (plaintiff) was a star football player for the Cleveland Browns from 1957 to 1965. Brown was considered one of the best football players to ever play in the National Football League (NFL) and, after retirement, had a successful career in entertainment and politics. Electronic Arts, Inc. (Electronic Arts) (defendant) made a popular video game called Madden NFL. In this game, users created and managed football teams using current and past NFL players. The avatars for current NFL players were identified by name. Electronic Arts had a licensing agreement with the NFL Players Association authorizing the use of the current players’ names and likenesses. The avatars for famous past NFL players were not identified by name, but were clearly identifiable by team, skill set, likeness, and other distinctive features. Brown’s avatar was one of the famous past NFL players featured on Madden NFL, but Brown was not compensated for the use of his likeness. Brown sued Electronic Arts for, among other things, trademark infringement under § 43(a) of the Lanham Act. The district court dismissed Brown’s suit for failure to state a claim, finding that Madden NFL’s use of Brown’s likeness was expressive speech that was not subject to a trademark-infringement claim. Brown appealed.

Rule of Law


Holding and Reasoning (Bybee, J.)

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