In 2009, Sam Keller, a former quarterback at Arizona State University and the University of Nebraska, filed sued against Electronic Arts (“EA”), NCAA, and Collegiate Licensing Company over the use his (and other similarly situated student-athletes) image and likeness in EA’s series of NCAA Football videogames. In turn, EA moved to strike the complaint under California’s anti-SLAPP statute, which was ultimately denied by the district court. California law discourages suits that “masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.” The anti-SLAPP statute states:
A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
Cal. Civ. Proc. Code § 425.16(b)(1). EA has raised a first amendment defense to the right of publicity claims set forth by Keller. As such, the Ninth Circuit employed the transformative use test to analyze EA’s arguments. Under the transformative use test the Court uses “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.”
The Ninth Circuit concluded that EA’s use of Keller’s likeness does not contain significant transformative elements such that EA is entitled to bar his claim as a matter of law. The court analogized this case to a case involving the rock band No Doubt and the use of their defining characteristics in the videogame Band Hero. The Court stated:
EA is alleged to have replicated Keller’s physical characteristics in NCAA Football, just as the members of No Doubt are realistically portrayed in Band Hero. Here, as in Band Hero, users manipulate the characters in the performance of the same activity for which they are known in real life—playing football in this case, and performing in a rock band in Band Hero. The context in which the activity occurs is also similarly realistic—real venues in Band Hero and realistic depictions of actual football stadiums in NCAA Football.
Accordingly, the Ninth Circuit concluded that the NCAA Football videogame series realistically portrays college football players in the context of college football games, thus the district court was correct in concluding that EA cannot prevail as a matter of law on its First Amendment defense. See also Hart Decision.