MICHAEL E. DAVIS, AKA Tony Davis; VINCE FERRAGAMO; BILLY JOE DUPREE; SAMUEL MICHAEL KELLER, Plaintiffs-Appellees,
ELECTRONIC ARTS INC., Defendant-Appellant
Argued and Submitted, San Francisco, California September 11, 2014.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Northern District of California. D.C. No. 3:10-cv-03328-RS. Richard Seeborg, District Judge, Presiding.
First Amendment / California Anti-SLAPP Statute
The panel affirmed the district court's denial of Electronic Arts Inc.'s motion to strike a complaint, brought by former professional football players alleging unauthorized use of their likenesses in the video game series Madden NFL, as a strategic lawsuit against public participation (SLAPP) under California's anti-SLAPP statute.
The panel rejected Electronic Arts's argument that its use of former players' likenesses was protected under the First Amendment as " incidental use." The panel held that Electronic Arts's use of the former players' likenesses was not incidental because it was central to Electronic Arts's main commercial purpose: to create a realistic virtual simulation of football games involving current and former National Football League teams.
The panel held that the district court properly denied Electronic Arts's motion to strike under the anti-SLAPP statute because it had not shown a probability of prevailing on its incidental use defense, and its other defenses (the transformative use defense, the public interest defense, and the test formulated by Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)) were effectively precluded by the court's prior decision in Keller v. Elec. Arts (In re NCAA Student-Athlete Name & Likeness Licensing Litig.), 724 F.3d 1268 (9th Cir. 2013).
Alonzo Wickers IV (argued), Kelli L. Sager, Karen Henry, Kathleen Cullinan and Brendan Charney, Davis Wright Tremaine LLP, Los Angeles, California; Robert Van Nest, R. James Slaughter and Adam Lauridsen, Keker & Van Nest LLP, San Francisco, California, for Defendant-Appellant.
Brian D. Henri (argued), Henri Law Group, Palo Alto, California, for Plaintiffs-Appellees.
Duncan W. Crabtree-Ireland and Danielle S. Van Lier, Screen Actors Guild-American Federation of Television and Radio Artists, Los Angeles, California, for Amicus Curiae Screen Actors Guild-American Federation of Television and Radio Artists.
Before: Stephen Reinhardt, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges. Opinion by Judge Fisher.
FISHER, Circuit Judge:
We are called upon to balance the right of publicity of former professional football players against Electronic Arts' (EA) First Amendment right to use their likenesses in its Madden NFL series of video games. We previously held EA's unauthorized use of a former college football player's likeness in the NCAA Football series of video games was not, as a matter of law, protected by the First Amendment. See Keller v. Elec. Arts (In re NCAA Student-Athlete Name & Likeness Licensing Litig.), 724 F.3d 1268 (9th Cir. 2013). In Keller, we rejected several of the First Amendment defenses EA raises here on materially indistinguishable grounds. EA advances one additional argument in this appeal -- its use of former players' likenesses is protected under the First Amendment as " incidental use." We disagree. We hold EA's use of the ...