Davis v. Electronic Arts Inc.
United States Court of Appeals for the Ninth Circuit
775 F.3d 1172 (2015)
Facts
Electronic Arts Inc. (defendant) created and published the Madden NFL (Madden) video game, which allowed users to engage in a realistic simulation of football games involving the National Football League’s (NFL) teams. Each annual version of Madden included all current players for all 32 NFL teams, along with accurate player names, team logos, colors, and uniforms, as well as popular historic teams. EA paid a licensing fee to use the likenesses of current players, but not the likenesses of former players on those historic teams. Even though the former players were not identified by name, each was described by his height, weight, position, skin tone, and playing abilities. Michael Davis and roughly 6,000 other former NFL players who appeared on more than 100 historic teams in various versions of Madden (plaintiffs), sued EA, alleging that Madden used their likenesses without authorization in violation of their right of publicity. EA moved to strike the complaint as a strategic lawsuit against public participation (SLAPP) under California’s anti-SLAPP statute. The district court denied the motion. EA appealed, advancing one additional argument—that its use of the former players’ likenesses was protected under the First Amendment as incidental use.
Rule of Law
Issue
Holding and Reasoning (Fisher, J.)
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