Bloomberg BNA’s Patent Trademark & Copyright Law Daily™is the IP industry’s premier news service, offering objective, timely,and reliable daily news coverage and commentary from leading IP law...
Oct. 7 — A petition for Supreme Court review was filed Oct. 5 in a right of publicity case involving former National Football League players who sued Electronic Arts for including their likenesses in its Madden NFL video game without their permission (Elec. Arts Inc. v. Davis, U.S., No. 15-424, review sought 10/5/15), appealing Davis v. Elec. Arts Inc., 775 F.3d 1172, 113 U.S.P.Q.2d 1341(89 PTCJ 623, 1/9/15)(05 PTD, 1/8/15)(05 DER A-15, 1/8/15)(16 CTLR 27, 1/16/15)(20 ECLR 53, 1/14/15).
The U.S. Court of Appeals for the Ninth Circuit dismissed EA's transformative use affirmative defense to the claims in January.
In the Ninth Circuit, a person's right of publicity is not violated if their likeness is used in a transformative way—that is, if significant creative elements are added that transform the use into something more than just a celebrity likeness or imitation.
However, the Ninth Circuit ruled that EA's use of the players' likenesses “in the performance of the same activity for which they are known in real life—playing football for an NFL team,” was not transformative.
EA argued in the Supreme Court petition that the transformative use test is “constitutionally perverse,” giving First Amendment protection “only to fanciful or distorted portrayals, not accurate or realistic ones.”
The case would be only the second right of publicity case ever considered by the Supreme Court, after Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 205 U.S.P.Q. 741 (1977), in which the court ruled that a local news station had infringed a performer's publicity rights by broadcasting the entirety of his 15 second “human cannonball” routine without his permission.
EA said that Zacchini “offers little to no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full.”
Right of publicity law currently exists under a patchwork of state laws and court decisions—and in some states, this rightis not recognized at all. EA said the Supreme Court's review was “urgently needed to resolve conflicting authority” about the right of publicity and the First Amendment.
The transformative use test is utilized by the Third and Ninth Circuits, while four other circuits have held—under what is called the Rogers test—that the right of publicity is only violated if the use of a likeness amounts to an unauthorized commercial endorsement.
EA said that the Rogers test is more appropriate because it “confines the right of publicity to circumstances where its application does not violate the First Amendment.”
EA argued that the transformative use test “penalizes fully protected and valuable speech based on its content,” by restricting protected speech because it includes the likeness of another person, and should therefore be subject to strict scrutiny.
The question presented in the petition for writ of certiorari here is:
Whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.
Paul M. Smith of Jenner & Block LLP, Washington, filed the petition. A response is due Nov. 5. The former NFL players were represented by Brian Douglas Henri of Henri Law Group, Sunnyvale, Calif., before the Ninth Circuit.
Elec. Arts Inc. v. Davis
No.15-424 (Oct. 5, 2015)
775 F.3d 1172
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)