Samuel Keller v. Electronic Arts Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE: NCAA STUDENT-ATHLETE No. 10-15387

NAME & LIKENESS LICENSING

LITIGATION, D.C. No. 4:09-cv-01967- CW

SAMUEL MICHAEL KELLER; EDWARD

C. O’BANNON, JR.; BYRON BISHOP;

MICHAEL ANDERSON; DANNY OPINION

WIMPRINE; ISHMAEL THROWER;

CRAIG NEWSOME; DAMIEN RHODES;

SAMUEL JACOBSON,

Plaintiffs-Appellees,

v.

ELECTRONIC ARTS INC.,

Defendant-Appellant,

and

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION; COLLEGIATE

LICENSING COMPANY,

Defendants.

Appeal from the United States District Court for the Northern District of California Claudia A. Wilken, District Judge, Presiding IN RE: NCAA LICENSING LITIG.

Argued and Submitted February 15, 2011—Pasadena, California Submission Vacated February 18, 2011 Argued and Resubmitted July 13, 2012—San Francisco, California

Filed July 31, 2013

Before: Sidney R. Thomas and Jay S. Bybee, Circuit Judges, and Gordon J. Quist, Senior District Judge.*

Opinion by Judge Bybee; Dissent by Judge Thomas

SUMMARY**

Anti-SLAPP/Video Games

The panel affirmed the district court’s denial of a motion to…

Video games are entitled to the full protections of the First Amendment, because *1271 “[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas: — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).” Brown v. Entm’t Merchs. Ass’n, — U.S. -, 131 S.Ct. 2729, 2733 , 180 L.Ed.2d 708 (2011). 1 Such rights are not absolute, and states may recognize the right of publicity to a degree consistent with the First Amendment. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 574-75 , 97 S.Ct. 2849 , 53 L.Ed.2d 965 (1977). In this case, we must balance the right of publicity of a former college football player against the asserted First Amendment right of a video game developer to use his likeness in its expressive works.

The district court concluded that the game developer, Electronic Arts (“EA”), had no First Amendment defense against the right-of-publicity claims of the football player, Samuel Keller. We affirm. Under the “transformative use” test developed by the California…

dissenting:

Because the creative and transformative elements of Electronic Arts’ NCAA Football video game series predominate over the commercial use of the athletes’ likenesses, the First Amendment protects EA from liability. Therefore, I respectfully dissent.

I

As expressive works, video games are entitled to First Amendment protection. Brown v. Entm’t Merchs. Ass’n, — U.S. -, 181 S.Ct. 2729 , 2733, 180 L.Ed.2d 708 (2011). The First Amendment affords additional protection to NCAA Football because it involves a subject of substantial public interest: collegiate football. Moore v. Univ. of Notre Dame, 968 F.Supp. 1330, 1337 (N.D.Ind.1997). Because football is a matter of public interest, the use of the images of athletes is entitled to constitutional protection, even if profits are involved. Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790 , 40 Cal.Rptr.2d 639 , 643 n. 2 (1995); see also Cal. Civ.Code § 3344(d) (exempting from liability the “use of a name ... or likeness in connection with any ... public affairs, or sports broadcast or account”).

Where it is recognized, the tort of appropriation is a creature of common law or statute, depending on the jurisdiction.…