The legal controversies over athletes' rights-of-publicity rage on. Two pending appellate decisions offer some hope that a rational conclusion might be in sight. The head of Manatt's Sports Law Practice Group, Ron Katz, had the article below on this subject published in Law360:
A recent New Jersey federal district court decision, Hart v. Electronic Arts Inc., described the body of law attempting to balance First Amendment rights with the right of publicity as "disordered and incoherent,"[1] a description with which those practicing in this subject area would readily agree. Ironically, however, Hart exacerbated this incoherence by coming to, on the same facts, an opposite conclusion from a California federal district court decision that preceded it by 18 months, Keller v. Electronic Arts.[2]
Both of those cases are now on appeal, to the Third and Ninth Circuits respectively. The purpose of this article is to explore one of the central issues that arose from the diametrically opposed reasoning of these cases — transformativeness.
In summary, if an image of a person is transformed sufficiently, then the First Amendment trumps the right of publicity and vice versa. The results of these appeals on the issue of transformativeness are likely to have a dramatic impact on athletes' rights of publicity in one of the most important marketplaces for those rights, video games.
The Facts
The facts of these two cases are familiar to all who play the popular Electronic Arts football video games. The facts are summarized respectively in the two cases,[3] differing principally in the description of the plaintiffs.
Basically, the manufacturer of the video games, EA, uses as avatars players for real college teams who, although they are not identified by name, are recognizable. As the Keller court stated:
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[Plaintiff] claims that these virtual players are nearly identical to their real-life counterparts: they share the same jersey numbers, have similar physical characteristics and come from the same home state. To enhance the accuracy of the player depictions, Plaintiff alleges, EA sends questionnaires to team equipment managers of college football teams. Although EA omits the real-life athletes' names from 'NCAA Football,' Plaintiff asserts that consumers may access online services to download team rosters and the athletes' names, and upload them into the games.[4] |
These images are alterable, as noted by the New Jersey court:
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[Plaintiff's] image in NCAA football ... can be altered in many ways--from his personal characteristics (height, weight, athletic ability), to his accessories (helmet, visor, wristband). In addition, the image's physical abilities (speed and agility, throwing arm, passing accuracy), attributes and certain biographical details (right handed/left handed) can also be edited by the user.[5] |
But, as also noted by the New Jersey court, "the game initially displays the virtual player in an unaltered form."[6]
The players receive no compensation for the use of their images. They filed these class action lawsuits seeking such compensation as damages.
Procedural History of the Two Cases
In both cases there were motions to dismiss. In the Keller case that motion was denied.[7] In the Hart case there was, in the alternative, a motion for summary judgment, which the court granted.[8] Therefore, although there has been some factual development through exhibits, judicial notice and declarations, neither case was yet at the discovery stage.
In the Keller case there was also a motion under California's SLAPP (Strategic Lawsuits Against Public Participation)[9] statute, which discourages frivolous suits impinging on speech. That motion was also denied,[10] but that denial is appealable. Although technically the SLAPP motion is under appeal, the issues are very close to those from the motion to dismiss.
The California Court's Analysis of the Transformativeness Issue
The California court first notes the elements of a common law right of publicity claim: (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.[11]
The court then describes the affirmative defense of transformativeness:
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A defendant may raise an affirmative defense that the challenged work is 'protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity's fame.'[12] |
Quoting the landmark California Supreme Court case on the transformativeness defense, Comedy III,[13] the Keller court describes its main inquiry:
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Whether the celebrity likeness is one of the "raw materials" from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the... |
