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Are EA’s visual representations in Madden generic enough to avoid liability in publicity claim?

Gaming controller with reflection below

28 February 2017

In 2010 Michael Davis and other former NFL players filed suit in California, alleging that video game maker Electronic Arts (EA) violated their rights of publicity when it used famous teams from the past in Madden games from 2001 until 2009. In their complaint, the retired players argued that while EA obtained permission from current players to use their names and likeness, the company failed to do so with the retired players. While the former players did not allege that their names actually appeared in the game, they argued that EA’s use of “real-life physical attributes, positions, relative skill and other identifying factors” could be linked back to them.

The plaintiffs’ complaint alleged a cause of action pursuant to California Code Section 3344, and also included causes of action under California Common Law for conversion, trespass to chattels, and unjust enrichment.

EA recently struck back and filed a motion for partial summary judgment on the retired players’ claim that the company violated Section 3344 of the California Civil Code. Notably, EA argued that its visual representations of the former players are generic, and the statute the plaintiffs sued under only protects a person’s name, signature, voice, likeness, or photo. EA continued that because Madden’s players are not based on any former player’s actual appearance, the claim must fail, as likeness under the statute has been defined as being the “visual image” of a plaintiff. Thus, EA maintained that “[t]he evidence is clear: EA has never used the visual image of any retired player in Madden NFL, including the named plaintiffs. . . To the contrary, the historic-team avatars in Madden NFL are generic, and there are thousands of visually identical avatars in Madden NFL.

In support of its motion, EA referenced White v. Samsung, (a Ninth Circuit decision from 1992), where the court held that although Samsung used a robot in one of its commercials bearing a resemblance to Vanna White (the hostess of Wheel of Fortune), the defendant’s use of the robot did not meet California’s Civil Code’s definition of “likeness,” as it still bore generic characteristics of a robot. Thus, EA argued that just like the generic robot, “[t]he undisputed evidence shows that the avatars on historic teams. . . are generic and cannot be readily identified as plaintiffs (not even by plaintiffs themselves)."

In its motion, EA claimed that because the identifying characteristics in the game are not visual — but rather are based on statistics that would need to be compared and analyzed with real-world team rosters — the “player’s statistics are not a ‘visual image of a person’ and thus, as a matter of law, they do not constitute a likeness under Section 3344.

In 2015, EA petitioned the Supreme Court of the United States to review its claims that it had a First Amendment constitutional right to use the retired NFL Players’ likeness. However, the Supreme Court denied EA’s request for review, instead leaving the Ninth Circuit’s ruling that EA did not have a First Amendment right to do so untouched.

Also, earlier this month, the plaintiffs submitted a bid for a class certification, after EA alleged the plaintiffs were a proposed nationwide class seeking recovery under one State’s laws. After dismissing the plaintiffs’ motion without prejudice, the court held that it is “not permissible to apply California law to every class member, regardless of domicile.

If EA’s motion to dismiss is granted, retired NFL players’ likeness will go unprotected so long as the images being used are “generic,” and do not explicitly identify the players by name or use their real pictures. However, if the motion is denied, video-game creators will be exposed to liability every time they use generic sports avatars in their video games, and thus, may be deterred from making games based off of real-life sports teams.

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