The 9th Circuit Court of Appeals, in a ruling issued on Tuesday, rejected EA’s effort to strike their lawsuit. EA had argued that their use of the players’ likenesses was an “incidental use” protected by the First Amendment.
The players — Michael Davis, Vince Ferragamo and Billy Joe Dupree — argued that their rights of publicity were violated when EA failed to include a license for including their likenesses in “Madden NFL” games from 2001 to 2009. Although the players were not identified by name, their images included a description of their position, years in the NFL, height, weight, skin tone and skill level.
For example, the game featured historic teams like the 1984 Los Angeles Rams, with the quarterback featuring identical physical characteristics to Ferragamo.
“EA argues that, because there are several thousand players depicted in ‘Madden NFL,’ any individual player’s likeness has only a de minimis commercial value. There is no basis for such a sweeping statement,” Judge Raymond Fisher wrote in a 16-page opinion. “EA includes only a small number of particularly successful or popular historic teams. EA also advertises the inclusion of those historic teams in promotional materials.”
Fisher also wrote that EA had not shown that it qualified for First Amendment protection under other defenses, such as the argument that the players’ depictions were substantially “transformative” or that their depictions are in the public interest.
The 9th Circuit previously ruled that EA’s use of a college football player’s likeness in the NCAA series of video games was not protected by the First Amendment.