ANY GIVEN SUNDAY

Autumn is a transitional period during the year that signifies a change in many people’s lives. The weather is getting crisp; the green on many leaves begins to fade leaving behind bright orange and red in its wake. As most of America’s students head back to school, a new Madden NFL video game is released to coincide with the NFL season. Since “John Madden Football” was first released in 1988, the Madden NFL video game franchise has sold 100 million copies of the game and has generated a gargantuan $4.2 billion in revenue, effectively solidifying itself as the top-selling sports video game franchise.

An essential component of each Madden NFL game is the accuracy with which the game depicts the NFL players. Frequently referred to as “player-likeness”, this aspect of the game is so important that Electronic Arts, Inc. (“EA”), the franchise’s developer, has spent $35 million for a license to use active players’ likenesses. However, since 2010, EA has been involved in a class action lawsuit brought by retired NFL players in the U.S. District Court for the Northern District of California alleging the non-consensual use of player-likeness in its Madden NFL franchise. These allegations stem from Madden NFL’s “historic teams”, where many players from prominent teams in NFL history, were depicted, even though the players were not identified by name or photograph. According to the lawsuit, the 2009 version of Madden NFL alone had over 100 historic teams with approximately 6,000 former NFL players being unlawfully depicted without permission.

In an attempt to absolve itself from liability, EA raised numerous First Amendment defenses at the trial level in its motion to strike, but to no avail as the U.S. District Court rejected the motion. EA then appealed the denial of the motion to the United States Court of Appeals for the Ninth Circuit However in on January 6th, 2015, the Ninth Circuit affirmed the denial of the motion stating that, “EA has not shown that its unauthorized use of former players’ likenesses qualifies for First Amendment protection under the transformative use, the public interest defense, the Rogers test or the incidental use defense.”

As of October 8th, 2015, EA has filed a writ of certiorari with the U.S. Supreme Court, asking for permission to review its case, which EA believes brings a legal question that has been “given markedly different answers.”

By: Rolando Cubela, Associate Editor of Sports and Entertainment

Photo credit: Hector Alejandro via flickr.com cc

SOURCES:

http://www.dailyreportingsuite.com/ip/news/use_of_former_pro_football_players_likenesses_in_videogame_not_protected_by_first_amendment;

http://www.law360.com/articles/185081/ex-nfl-players-sue-electronic-arts-over-madden-games;

http://www.law360.com/articles/691364/ea-wants-nfl-players-likeness-suit-paused-for-high-court;

http://www.law360.com/articles/712344;

http://www.foxnews.com/tech/2015/08/26/bam-madden-video-game-franchise-marchs-on.html;

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/01/06/12-15737.pdf;

http://thesportsesquires.com/wp-content/uploads/2014/05/Davis-v.-Electronic-Arts-motion-to-stay-august-13-2015.pdf.