Electronic Arts Petitions U.S. Supreme Court For Review Of “Right Of Publicity” Decisions.

NCAA football2Video game developer Electronic Arts has filed Petitions for writ of certiorari to the United States Supreme Court, requesting that the Court review two recent appellate court rulings that college athletes can continue their claims against EA for allegedly violating their publicity rights.

In the underlying cases (Hart v. Electronic Arts, Inc. in New Jersey, and Keller v. Electronic Arts, Inc. in California) the plaintiffs—former NCAA football players—allege that EA violated their state law rights of publicity by exploiting their likenesses for profit in its NCAA Football series of video games. EA had requested dismissal of both cases, arguing that EA’s use of plaintiffs’ likenesses constitutes “artistic expression” protected by the First Amendment, and that Plaintiffs’ claims therefore fail as a matter of law.

The 9th Circuit appellate court in Keller and the 3rd Circuit appellate court in Hart disagreed.  Each recognized that video games are protected as expressive speech, but found that EA’s First Amendment rights did not trump plaintiffs’ publicity rights where it appeared EA incorporated plaintiffs into the game without notable change, and for the purpose of boosting the game’s realism (i.e., predominantly to capitalize upon the plaintiffs’ personas).

EA filed its Petitions for certiorari on September 23, 2013.  A key issue now before the Supreme Court is therefore the balance of a game developer’s First Amendment rights as against individuals’ rights of publicity, and the test to be applied in weighing these competing interests.  The outcome of the case will have broad implications for game developers and publishers going forward.