Guest Post: David Fagundes on Keller v. EA

RT: I'm very pleased to offer a summary of the arguments in this important right of publicity case provided by David Fagundes of Southwestern Law, who attended the argument.  I'll let David take it from here:

Today, the Ninth Circuit heard argument in Keller v. Electronic Arts., Inc.  Keller, a college football player, had filed a complaint in the Northern District of California against a number of defendants including Electronic Arts (“EA”) on a several theories, including a violation of his rights of publicity under California statutory and common law.  EA filed a number of responsive motions, including a motion to strike the complaint pursuant to California’s anti-SLAPP statute.  The District Court (Judge Wilken) denied the motion last February, concluding that Keller had shown a sufficient likelihood of success in overcoming EA’s First Amendment defense to his right of publicity claims.  EA appealed that denial, leading to this morning’s oral argument before a panel of Rymer, Bybee, and Quist (W.D. Mich., sitting by designation). 

            Appellant’s opening argument

            Kelli Sager argued for appellant EA.  Sager began by stressing the transformative character of the video games in which Keller and other college athletes’ likenesses appears.  Resisting Keller’s argument that the exactness of EA’s depiction of athletes should be dispositive, Sager urged the court to look beyond EA’s accurate portrayal of players themselves, and instead to consider the player avatars in the overall context of the video game medium.

            A colloquy about two related cases, ETW Corp. v. Jireh Publishing, Inc. (6th Cir. 2003) and Hilton v. Hallmark Cards (9th Cir. 2009) ensued.  Sager argued that ETW in particular favored EA’s position because it regarded a relatively accurate depiction of Tiger Woods as transformative when viewed in the context of a poster featuring numerous other elements.  Sager also analogized video games to film, and cited Gugliemi v. Spelling-Goldberg Prods. (Cal. 1979) as one case in which filmmakers’ rights to accurately depict celebrities were held protected by the First Amendment against celebrities’ asserted rights of publicity. 

            The court inquired about the relevance of video games’ interactivity, and Sager argued that their interactivity increased rather than diminished the force of EA’s First Amendment defense, noting recent Ninth Circuit precedent that tattoos (which involve substantial user input as part of the creative process) constitute protected First Amendment expression (Anderson v. Hermosa Beach, 9th Cir. 2010).  Sager pointed out that EA video games allowed player avatars such as Keller to be modified dramatically, so they may not end up even being recognizable as the actual player on which they were originally based.

            Sager urged the court to apply the test articulated in Rogers v. Grimaldi (2d Cir. 1989), claiming that the use of player identities is artistically necessary to EA’s video games, and that the use of those identities is not explicitly misleading.  Sager suggested that a contrary holding would put in jeopardy the legality of many films, including recent Academy Award nominees The Social Network and The King’s Speech.

            Finally, the court inquired about the public interest test for First Amendment defenses to right of publicity claims, and Sager suggested that EA would prevail if this test were applied as well, observing that federal courts had upheld the use of player statistics in fantasy leagues on similar theories.

            Appellee argument

            Steve Berman argued for appellee Samuel Michael Keller.  Berman began by citing Zacchini v. Scripps-Howard Broadcasting (U.S. 1977) in order to stress that the First Amendment does not provide a limitless defense to individuals having their identities financially exploited without their consent.  Judge Rymer asked what financial interests amateur athletes can have, and Berman responded that by monetizing their identities in the context of a lucrative video game, EA had created that financial interest.

            Turning to transformative use, Berman stressed that the purpose of EA’s game is to achieve realism, quoting EA’s slogan, “If it’s in the game, it’s in the game.”  Berman suggested that Winter v. DC Comics (Cal. 2003) provided more appropriate benchmark to transformativeness, and that it required the court to focus on whether EA had transformed Keller’s image itself, rather than just placing Keller’s image in a context that is itself transformative.  Berman also dismissed the relevance of EA’s point that player avatars can be modified by users, pointing out that the possibility of future modification does not change the fact that EA’s initial depiction of players is nearly verbatim.  Berman pointed out that the unprotected T-shirt images of the Three Stooges found to be unprotected by the First Amendment in Comedy III v. Saderup (Cal. 2001), could also have been modified by wearers so that the images ended up being unrecognizable.

            In terms of the public interest test, Berman distinguished cases upholding First Amendment defenses to sports fantasy leagues’ using player statistics without permission on two theories, arguing that player statistics are newsworthy facts of public interest, while EA’s player avatars are simply exact (and not particularly newsworthy) depictions of college athletes. 

            Berman also resisted application of the Rogers test, pointing out that it was a case exclusively about the titles of artistic works, and also that Comedy III provides a much more apt way to balance First Amendment concerns when unauthorized uses of images are at issue.  Berman also urged application of the “predominant use” test developed in Doe v. TCI Cablevision (Mo. 2003), whereby the right of publicity trumps First Amendment concerns if the predominant use at issue is commercial exploitation rather than expression.  Berman illustrated the point by saying that the unauthorized depiction of a person on a Wheaties box was predominantly commercial (and therefore invalid despite the First Amendment), while the unauthorized depiction of a person in a film was predominantly expressive (and therefore protected under the First Amendment).

            Appellant rebuttal

            Sager began by responding to Keller’s invocation of the predominant use test, pointing out that it had only ever been embraced by the Missouri Supreme Court, and then arguing that if the predominant use test applied, it would favor EA, because video games are—like film—a predominantly expressive medium.  Sager cited, inter alia, ESS Entertainment v. Rockstar Videos (9th Cir. 2008), to illustrate that courts have treated video games as expressive works.

            Sager also pushed back against Keller’s reliance on Zacchini, pointing out that while that case involved a use of identity certain to cause the plaintiff economic harm, the replications of Keller’s likeness here were not harmful to him at all.  Indeed, Sager went on, the increasing popularity of interactive sports video games such as EA’s football titles has correlated with increases in the popularity of the sports they replicate.

            This account is based on notes I took contemporaneously with the oral argument, and is necessarily imperfect.  Full audio and video of the argument will be available at the Ninth Circuit’s website later this week.