First Amendment - Right of Publicity - Ninth Circuit Rejects First Amendment Defense to Right-of-Publicity Claim

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FIRST AMENDMENT--RIGHT OF PUBLICITY--NINTH CIRCUIT REJECTS FIRST AMENDMENT DEFENSE TO RIGHT-OF-PUBLICITY CLAIM.--In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 724 F.3d 1268 (9th Cir. 2013).

The right of publicity is the right of individuals "to control the use of their names and likenesses for commercial purposes." (1) Because this right naturally implicates speech interests, it can be exercised only insofar as it comports with the requirements of the First Amendment. To date, however, courts have disagreed on how best to draw this line. Recently, in In re NCAA Student-Athlete Name & Likeness Licensing Litigation (2) (Keller), the Ninth Circuit employed a test derived from copyright law in determining that the maker of a football video game was not shielded by the First Amendment from the right-of-publicity claim of a former player whose likeness appeared in the game. The court instead should have adopted a more speech-protective test that carves out a narrower scope for the right of publicity.

Samuel Keller played collegiate football for two seasons, in 2005 and 2007. (3) Electronic Arts, inc. (EA) is a California software company that makes, among other titles, the NCAA Football series of video games. (4) in these games, EA seeks to reproduce the college football experience as realistically as possible. (5) one element of this reproduction is the players themselves. in each edition of the game, EA creates an in-game avatar corresponding to every real-life player. (6) Each avatar shares its real-life counterpart's "jersey number ... [,] height, weight, build, skin tone, hair color, and home state," among other distinctive features. (7) in the 2005 and 2008 editions of NCAA Football, EA included avatars modeled on Keller. (8)

In 2009, Keller filed a putative class action complaint in federal district court alleging that EA's use of his likeness without his consent "violated his right of publicity under California Civil Code [section] 3344 and California common law." (9) EA moved to strike the suit under a California law addressing strategic lawsuits against public participation (SLAPP). (10) In denying the motion, the court rejected EA's argument that its use of Keller's likeness was protected by the First Amendment. (11) Applying the "transformative use" test developed by the California Supreme Court, the court held that because "EA does not depict [Keller] in a different form," its "depiction ... is not sufficiently transformative to bar [Keller's] California right of publicity claims as a matter of law." (12) EA subsequently appealed from the denial of the motion to strike under California's anti-SLAPP statute.

The Ninth Circuit affirmed. Writing for the majority, Judge Bybee (13) began by explaining that the anti-SLAPP statute "subjects to potential dismissal only those actions in which the plaintiff cannot state and substantiate a legally sufficient claim." (14) EA conceded that Keller had stated a right-of-publicity claim but argued that it was entitled to several affirmative defenses based on the First Amendment. (15)

Judge Bybee turned first to the transformative use defense. As articulated by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc., (16) this defense, which draws on copyright principles, involves "a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation." (17) Judge Bybee described the "five factors" that the California court had considered in making this determination. (18) He then discussed the cases in which California courts had applied the test, relying heavily on the Court of Appeal's decision in No Doubt v. Activision Publishing, Inc., (19) a case with facts very similar to Keller's. (20) Arguing that, like the game at issue in No Doubt, NCAA Football let "users manipulate the characters in the performance of the same activity for which they are known in real life" with a high degree of realism, Judge Bybee concluded that "EA's use of Keller's likeness does not contain significant transformative elements such that EA is entitled to the defense as a matter of law. …