Video gamemaker Electronic Arts Inc lost its effort to seek First Amendment protection to block former NFL football players from claiming damages for use of the images in the popular video game series Madden NFL.
The 9th U.S. Circuit Court of Appeals Tuesday upheld U.S. District Judge Richard Seeborg’s refusal to dismiss the players’ lawsuit against EA.
The appeals court rejected EA’s argument that use of the former players’ images was protected under the First Amendment as an “incidental use.”
The EA games create realistic virtual simulations of football games involving current and former NFL league teams and the images of players, as avatars, are central to the company’s main commercial purpose, according to the court.
Although EA has paid the National Football Players Inc., the licensing arm of the players’ association, millions of dollars in licensing fees for the use of avatars depicting current players, it did not pay for licensing of former players for “historic teams.”
EA made Madden NFL of historic teams from 2001 to 2009.
For example, the EA historic game used an image that was Vince Ferragamo, the Los Angeles Rams quarterback in 1979. Roughly 6,000 former NFL players appear on more than 100 historic teams in various editions of the game, according to the court.
“The former players’ likenesses have unique value and contribute to the commercial value of Madden NFL,” wrote Judge Raymond Fisher. “EA goes to substantial lengths to incorporate accurate likenesses of current and former players, including paying millions of dollars to license the likenesses of current players,” he said. “Having acknowledged that likenesses of current NFL players carry substantial commercial value, EA does not offer a persuasive reason to conclude otherwise as to the former players,” Fisher wrote.
Having chosen to use player likenesses, EA cannot “now hide behind” the number of its potential offenses or the alleged unimportance of any one player, the court held.
EA has challenged the claims in the past. In this appeal, the company used what’s known as the California Anti-SLAPP law, of Strategic Lawsuit Against Public Participation. The Anti-SLAPP law is a powerful legal tool used to immediately dismiss an action if the lawsuit is filed to silence otherwise legitimate First Amendment expression.
The 9th Circuit held that EA failed to show that its use of the images was “transformative” and therefore protected expression. The court also said EA failed to show it was likely to prevail in a trial.
Fisher was joined by Judges Marsha Berzon and Stephen Reinhardt.
Case: Davis v. Electronic Arts Inc., No. 12-15737