Football video games have existed for over 25 years and have continued to grow in sophistication.  Player avatars have evolved from generic pixels to fully developed representations.  Electronic Arts (EA), the video games publisher with an exclusive license for NFL games, now records player information like height and weight to create as realistic an experience as possible.  Along with these technological advances have come concerns about the use of player likenesses in both professional and amateur football games.  The 9^th Circuit recently decided a case regarding player likenesses in both the Madden NFL and NCAA video games.  The court ruled differently in each case and a quick look at the cases sheds light on how these claims will be handled in the future.

Brown vs. Electronic Arts featured Cleveland Browns running back Jim Brown disputing the use of his likeness in EA’s Madden NFL series.  While Jim Brown stopped playing football in 1965, EA included him as part of the 1965 Cleveland Browns team in some versions of the Madden series.  His avatar did not include his name but was physically similar to him and simulated his style of play.  In later games EA changed the number of Brown’s avatar to make it a little more dissimilar to him.

The other case was In re NCAA Student-Athlete Name & Likeness Licensing Litigation.  The plaintiff in this case was Samuel Keller. A quarterback from Arizona State University who transferred to the University of Nebraska.  His in-game avatar did not feature his name but did have the same “height, weight, skin tone, hair color, hair style, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller.”  In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1272 (9th Cir. 2013).

Both of these cases had similar trademark and likeness claims, but it was procedural decisions which caused different rulings at the 9^th Circuit level.  Both cases started in federal district courts in California.  They both made claims under California’s right to publicity law and under the Lanham Act, which establishes federal trademark rights.  However, Brown asserted supplemental jurisdiction over his state law claims while Keller asserted federal diversity jurisdiction.  This meant if Brown’s Lanham Act claims were dismissed the 9^th Circuit could not weigh the state law claims but Keller’s would still be ok.

The Court used the Rogers test to weigh Brown’s Lanham Act claim.  Under the Rogers test, a likeness claim loses unless the use of the likeness has no artistic relevance.  If it does, the likeness claim still fails if the work does not explicitly mislead the public as to the public figure’s endorsement of the work.  In Brown and NCAA, the court ruled the realistic likeness of the players is very important to EA’s artistic goal of creating a video game experience as close to real life as possible.  Additionally, EA proved they never led consumers to believe Brown endorsed any of the Madden games.  Having failed the Rogers test, Brown’s Lanham claim was dismissed and therefore the rest of his case.

In In re NCAA, the court turned its attention to Keller’s right of publicity claim.  The justices stated that unlike the Lanham Act, the right of publicity does not seek to prevent the risk of confusion in consumers but instead is concerned with a public figure’s right to control their image.  From this perspective, the court ruled the NCAA avatar was too identical to Keller’s actual likeness.  It rejected EA’s 1^st Amendment claim and refused to use the Rogers test in a case of right of publicity.  Thus Keller’s lawsuit was allowed to proceed.

As a result of the NCAA ruling, EA has settled all pending cases with college players.  On September 27^th, 2013, it subsequently dropped its plans to release a new game in the franchise and the future of college football games is now in question.

If you have any trademark issues or are defending trademark claims, you can contact Stone Law at 732-444-6303 or leave us a message on our website.