James Brown v. Electronic Arts, Inc.

Plaintiff — Appellant James “Jim” Brown alleges that Defendant — Appellee Electronic Arts, Inc. (“EA”) has violated § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), through the use of Brown’s likeness in EA’s Madden NFL series of football video games. In relevant part, § 43(a) provides for a civil cause of action against:

15 U.S.C. § 1125 (a)(1). Although claims under § 43(a) generally relate to the use of trademarks or trade dress to cause consumer confusion over affiliation or endorsement, we have held that claims can also be brought under § 43(a) relating to the use of a public figure’s persona, likeness, or other uniquely distinguishing characteristic to cause such confusion.

Section 43(a) protects the public’s interest in being free from consumer confusion about affiliations and endorsements, but this protection is limited by the First Amendment, particularly if the product involved is an expressive work. Recognizing the need to balance the public’s First Amendment interest in free ex•pression against the public’s interest in being free from consumer confusion about affiliation and endorsement, the Second Circuit created the “Rogers test” in Rogers v. Grimaldi, 875…