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9th Cir. Sacks EA's Free Speech Argument in Ex-NFL Players' Suit

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By Mark Wilson, Esq. on January 08, 2015 10:23 AM

Back in May, the NCAA, game-maker EA Sports, and plaintiffs reached an agreement over the NCAA's use of college football players' likenesses without paying them.

Earlier this week, video game football was dealt another blow as the Ninth Circuit Court of Appeals allowed an ex-NFL players suit to proceed against EA for using former players' likenesses without their permission.

My First Amendment Right to Make Money From Your Face

EA moved to dismiss the suit under California's anti-SLAPP statute. The motion, whose name stands for "strategic lawsuit against public participation," is designed to dismiss nuisance lawsuits targeted at people exercising their rights. So why does EA think this lawsuit is infringing on their rights?

Free speech, man!

EA argued, apparently with a straight face, that deliberately using all the personal details of former players -- short of their names or photographs -- along with their historic team affiliations, in a video game designed to make EA money, was actually an exercise of EA's First Amendment rights.

EA had tried this "First Amendment" defense in the original NCAA lawsuit, but then, as now, the Ninth Circuit said there were no First Amendment defenses available. For example, though EA claimed that its video game was protected by a California statute regarding "publication of matters in the public interest," the panel reiterated the Ninth Circuit's findings from the college football decision: "Put simply, EA's interactive game is not a publication of facts about college football; it is a game, not a reference source."

EA also argued that any use of the players' likeness was "incidental" to its First Amendment exercise. As you might expect, the panel wasn't buying any of that. "EA goes to substantial lengths to incorporate accurate likenesses of current and former players, including paying millions of dollars to license the likenesses of current players," Judge Raymond Fisher wrote. "EA has acknowledged, '[t]he Madden titles are successful in part because they allow consumers to simulate play involving any of the 32 NFL teams, using real NFL players.'"

So, utilizing players' likenesses is a feature, not a bug.

You Can't Have It Both Ways

Arguing the First Amendment defense when you've created a product that's dependent on customers recognizing their favorite players or musicians is sort of a non-starter. Because California is a hotbed of entertainers, all of whom want to retain the rights to their likenesses, the state jealously guards publicity rights.

How is this case different from the Manuel Noriega/"Call of Duty" case that a California superior court dismissed in October? The importance of the celebrity to the work comes to mind. Manuel Noriega wasn't really the reason people bought "Call of Duty." But the promise of real NFL players is definitely a reason why people buy Madden.

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