Michael Davis v. Electronic Arts Inc.

We are called upon to balance the right of publicity of former professional football players against Electronic Arts’ (EA) First Amendment right to use their likenesses in its Madden NFL series of video games. We previously held EA’s unauthorized use of a former college football player’s likeness in the NCAA Football series of video games was not, as a matter of law, protected by the First Amendment. See Keller v. Elec. Arts (In re NCAA Student-Athlete Name & Likeness Licensing Litig.), 724 F.3d 1268 (9th Cir.2013). In Keller, we rejected several of the First Amendment defenses EA raises here on materially indistinguishable grounds. EA advances one additional argument in this appeal—its use of former players’ likenesses is protected under the First Amendment as “incidental use.” We disagree. We hold EA’s use of the former players’ likenesses is not incidental, because it is'central to EA’s main commercial purpose—to create a realistic virtual simulation of football games involving current and former NFL teams.

I. Background

EA is a developer and publisher of video games, including Madden NFL, which EA publishes annually. Madden NFL allows users to play virtual football…