Short version: replay of Hart
v. EA. Blech.
Tyler
Ochoa has another summary, with commentary, up at Eric Goldman’s blog. He notes the undeniable medium discrimination
at work, and also points to a peculiarity of the way the courts are forced to
deal with Rogers’ right of publicity
analysis—since Rogers isn’t just a
Lanham Act case—to pretend that there is no circuit split: “[t]he Keller court bizarrely suggests that the
Rogers ‘wholly unrelated’ standard
was merely a federal court’s Erie
prediction about a matter of state tort law, rather than a federal First
Amendment limitation on state tort law.”
By adopting the transformative use test
to balance the First Amendment considerations because that’s what Comedy III did, Prof. Ochoa notes that “[t]he Keller court thus (somewhat strangely)
abdicated its role as a federal court to construe federal law, and instead
deferred to a state court’s view of federal law.” I’m in full agreement with these points—as to
the last, here’s how the court summarizes its decision: “Under the
‘transformative use’ test developed by
the California Supreme Court, EA’s use does not qualify for First Amendment protection as a matter
of law because it literally recreates Keller in the very setting in which he
has achieved renown” (emphasis added).
Like
the court in Brown v. EA, the court
here spends a lot of time on the game’s aspirations to realism; but where
realism confers First Amendment protection in Brown, it strips that protection in Keller. Comedy III, the
court held, gave “at least five factors to consider” in determining
transformativeness. (Which on its face
sounds like a pretty unpredictable and chilling test for artists.
But of course medium discrimination/discrimination against visuals will
get us most of the way to a result, so it’s only going to chill
visual/audiovisual creators. Yay?)
(1) If the celebrity likeness is one of the “raw materials”
from which an original work, it’s more likely to be transformative than if the
depiction/imitation of the celebrity is the sum and substance of the work.
(2) A work that is primarily the defendant’s own expression
is protected, as long as the expression is something other than the likeness of
the celebrity. (The visual again! Even a laser-focused biography would clearly
be protected as “primarily the defendant’s own expression.”) This factor evaluates likely purchasers’
primary motivations, as inferred from the work itself (I added that last bit,
but it’s not as if courts ever consult anything but their own intuitions about
this)—whether the purchaser wants a reproduction of the celebrity or the
artist’s expressive work. (How would
this even be tested? If Andy Warhol is
protected because he’s famous and thus people want his work specifically, as per Comedy
III, then surely EA’s games have similar status among the relevant
audiences. But I suppose the court
presumes that videogame players can’t be interested in aesthetic/haptic
experiences, though I have no idea what the court thinks they are interested
in, other than an undefined “realism.”)
(3) To avoid quality judgments, the court should conduct a
quantitative inquiry and ask “whether the literal and imitative or the creative
elements predominate in the work.” (1
unit of realism = x units of artistic skill?)
(4) In close cases, the court should ask whether “the
marketability and economic value of the challenged work derive primarily from
the fame of the celebrity depicted.”
(Why is this different from (2)?
It is certainly no different in the evidence the courts use to determine
the answer—their own evaluation of the appeal of the work.)
(5) “[W]hen an artist’s skill and talent is manifestly
subordinated to the overall goal of creating a conventional portrait of a
celebrity so as to commercially exploit his or her fame,” the work is not
transformative.
The court ran through the key California cases: Comedy III, Winter v. DC Comics (transformative because the Winter brothers
“are but cartoon characters . . . in a larger story, which is itself quite
expressive,” which the Keller majority
specifically calls out as important but never mentions again); Kirby v. Sega; and No Doubt v. Activision (holding that appearing in a context of a
game with many other creative elements didn’t make the avatars anything other
than exact depictions of No Doubt’s members doing exactly what they did as
celebrities). The 9th Circuit
also has Hilton v. Hallmark Cards,
finding that a greeting card showing Paris Hilton working as a waitress wasn’t
necessarily transformative.
Using those cases, the court concluded that EA’s use wasn’t
transformative enough to entitle EA to the defense as a matter of law. As in No
Doubt, “users manipulate the characters in the performance of the same
activity for which they are known in real life,” and the context was similarly
realistic.
The dissent believed that the overall context of the game,
in which Keller’s avatar was only a small part, showed transformativeness, but
the majority didn’t agree: just because there were other creative elements in
the game, that didn’t transform the avatars at issue into anything more than
exact depictions of the players doing what they did as actual players. “[T]he fact is that EA elected to use avatars
that mimic real college football players for a reason. If EA did not think
there was value in having an avatar designed to mimic each individual player,
it would not go to the lengths it does to achieve realism in this regard.
Having chosen to use the players’ likenesses, EA cannot now hide behind the
numerosity of its potential offenses or the alleged unimportance of any one
individual player.” Nor did the ability
to alter avatars matter; the avatars weren’t “fanciful, creative characters” or
“portrayed as . . . entirely new character[s].” (So much for biopics, eh?) No
Doubt was the best evidence of what California’s highest court would do,
and the case was so similar that it controlled, given the court’s obligation to
follow state courts on a matter of state law.
(As opposed to the First Amendment controlling, I suppose.)
In footnotes, the majority also rejected EA’s argument that No Doubt was distinguishable given the
allegedly breached license agreement in that case; the No Doubt court didn’t rely on breach of contract in its right of
publicity analysis. Plus, Keller argued
that EA contracted away its First Amendment rights in a licensing agreement
with the NCAA that purportedly prohibited the use of athlete likenesses. This
was for the district court on remand if a factfinder determined that EA’s use was
transformative.
Separately, the majority rejected the dissent’s argument
that Keller was distinguishable
because “an individual college athlete’s right of publicity is extraordinarily
circumscribed and, in practical reality, nonexistent” because “NCAA rules
prohibit athletes from benefitting economically from any success on the field.” The NCAA rules are unfair, “but setting fairness aside,
the fact is that college athletes are not indefinitely bound by NCAA rules….
EA’s use of a college athlete’s likeness interferes with the athlete’s right to
capitalize on his athletic success once he is beyond the dominion of NCAA rule.”
The majority also disputed the argument that its rule would
threaten all realistic depictions of actual people. Comedy
III “requires an examination of whether a likely purchaser’s primary
motivation is to buy a reproduction of the celebrity, or to buy the expressive
work of that artist,” quoting McCarthy.
(So what kind of evidence does EA get to put in on this? Does it get to show that, like Andy Warhol,
it has a reputation that drives sales of new EA games? Does it get to show target consumers a crappy
game featuring Keller’s likeness and an EA game and ask if consumers care about
the difference, thus almost certainly demonstrating that the primary motivation for
picking a game is the quality of the game and not the fact that it has Keller’s
likeness in it? Despite the total
absence of evidence on these issues in previous cases, it seems to me that if
we’re going to pretend that it’s the selling power of the celebrity identity
that matters, one might at least empirically investigate whether that celebrity—or even the
aggregate identities of the players—is actually affecting consumer choices
compared to other elements of game quality.
Of course, “primary motivations” can be difficult to disentangle;
Keller’s lawyers will probably suggest a different counterfactual/control, such
as a generic football game produced by EA, though I imagine that even then they
might be disappointed by the results.)
Anyhow, says the majority, this “primary motivation” test
(which incidentally is pretty hard to distinguish from the execrable Doe v. TCI) “leaves room for
distinguishing between this case—where we have emphasized EA’s primary emphasis
on reproducing reality—and cases involving other kinds of expressive works.” (Like biographies? Or paparazzi photographs? The court is simply unwilling to recognize
that video games might have artistic value of their own; as with every other
form of art, one way that such artistic value can come is from a style
recognized as realist.)
The court then rejected Rogers
for the right of publicity, since Rogers
was designed to protect consumers from confusion, whereas the right of
publicity “protects a form of intellectual property [in one’s person] that
society deems to have some social utility.” (Which society? Which legislature explicitly decided that the
right had utility applied to artistic works?)
Acquiring notoriety may require a lot of investment to generate
commercial value, which is then allocated to the celebrity: “The right of
publicity protects the celebrity, not the consumer.” (As Professor Ochoa also noted, it’s very hard to
understand why this is an argument for more
limited First Amendment protection against right of publicity claims, and the court doesn't try to tell us.) EA appropriated Keller’s talent and years of
hard work on the football field. (Like
biographers, sports photographers, etc.)
True, Rogers also evaluated a
right of publicity claim, but it was just guessing what Oregon courts would do,
whereas the Ninth Circuit knows what California courts would do.
The majority also addressed two other defenses: one is for common
law right-of-publicity claims for the “publication of matters in the public
interest.” For statutory right-of-publicity claims, the “use of a name, voice,
signature, photograph, or likeness in connection with any news, public affairs,
or sports broadcast or account, or any political campaign” is exempt. Both defenses protect only the act of
publishing or reporting. California
courts have held documentaries protected, as well as baseball players’ data,
verbal descriptions, and video depictions in game programs and on a
website. And posters portraying football
victories were also protected.
Here, however, unlike those cases, “EA is not publishing or
reporting factual data.” But somehow the video game is still realist.
There is in fact a particular conception of realism that works without
facts—realism as ideal type (e.g., the Pilgrim’s Progress or Audubon’s bird
portraits)—but it’s completely inconsistent with the concept of realism as accuracy to
specific individuals to which the court appealed when finding EA’s use
nontransformative.
Discrimination against video games allows the court to have
it both ways: “A video game is a means by which users can play their own
virtual football games, not a means for obtaining information about real-world
football games.” (Note the subtle shift
from information about the players to information about the games.) True, EA incorporated actual player
information into the game, which is the basis for the suit, but “its case is
considerably weakened by its decision not to include the athletes’ names along
with their likenesses and statistical data. EA can hardly be considered to be ‘reporting’
on Keller’s career at Arizona State and Nebraska when it is not even using
Keller’s name in connection with his avatar in the game. Put simply, EA’s
interactive game is not a publication of facts about college football; it is a
game, not a reference source.” The state law defenses didn’t apply.
Likewise, the majority rejected the dissent’s argument that
the First Amendment should control because “the essence of NCAA Football is founded on publicly available data,” as in the
fantasy baseball games protected in C.B.C.
Distribution. But there was a “big
difference” here: pictures! Fantasy
baseball just used names, performance, and biographical data. NCAA
Football used virtual likenesses. (I
was under the impression that both the statutory and common-law rights of publicity
purported to cover both names and likenesses on the same terms.)
“It is seemingly true that each likeness is generated
largely from publicly available data … but finding this fact dispositive would
neuter the right of publicity in our digital world. Computer programmers with
the appropriate expertise can create a realistic likeness of any celebrity
using only publicly available data.”
Judge Kozinski’s White dissent remains prophetic:
“But what does ‘evisceration’ mean in intellectual property law? Intellectual
property rights aren't like some constitutional rights, absolute guarantees
protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations:
The very point of intellectual property laws is that they protect only against
certain specific kinds of appropriation.”
But, the majority continued, what if EA created a virtual
likeness of Tom Brady using only publicly available data? Would it have free
reign to use that likeness in commercials?
Of course not! Therefore EA loses in this case. (You don’t need me to point out that adding
“in commercials” changed the example entirely and proved nothing, right? Also, if I’m not mistaken, this is the
circuit that found a claim
in the use of the name—not the image—“Lew Alcindor” in an ad; does the
court now think that use of nonvisual data alone in an ad is protected by the
First Amendment, since it’s the virtual likeness and the biographical data that
makes the difference?)
Judge Thomas dissented, largely agreeing with Judge Ambro’s Hart dissent, down to accepting
transformativeness as the proper test. “Because
football is a matter of public interest, the use of the images of athletes is
entitled to constitutional protection, even if profits are involved.” The dissent cautioned that Comedy III didn’t really set out five
factors, but engaged in a “more holistic examination of whether the
transformative and creative elements of a particular work predominate over
commercially based literal or imitative depictions.” Too much deconstruction misapplies the test,
which is what happened here. The key
question is whether the overall work
is transformative, “and whether the transformative elements predominate, rather
than whether an individual persona or image has been altered.”
NCAA Football was
a work of “interactive historical fiction.”
Players role-played as college football players. Gamers have many options for how they can
behave and alter avatars. “The athletic
likenesses are but one of the raw materials from which the broader game is
constructed. The work, considered as a whole, is primarily one of EA’s own expression.” The marketability and economic value of the
game came from its creative elements, not pure commercial exploitation of
celebrity image. (For fairness: I also
wonder how the dissent knows this. The
fact that the majority and the dissent know completely different facts about
the sources of the economic value of the game indicates that the word
“economic” is a screen for a different concept altogether, something about
artistic value and/or desert and/or acceptable versus unacceptable free
riding.) “The game is not a conventional
portrait of a celebrity, but a work consisting of many creative and
transformative elements.”
No Doubt was
distinguishable—the literal representations there couldn’t be transformed in
any way, but were created by using motion capture photography. Character immutability was a key
distinguishing factor. Initial placement
of realistic avatars in the game wasn’t enough to overcome the First Amendment’s
protection, as No Doubt held, “even
literal reproductions of celebrities may be ‘transformed’ into expressive works
based on the context into which the celebrity image is placed.”
The dissent wouldn’t punish EA for its realism and “for the
skill of the artists who created realistic settings for the football games.
That the lifelike roar of the crowd and the crunch of pads contribute to the
gamer’s experience demonstrates how little of NCAA Football is driven by the particular likeness of Sam Keller,
or any of the other plaintiffs, rather than by the game’s artistic elements.”
The dissent also pointed out that a “balancing” inquiry also
requires consideration of the strength of the interest on the other side of the
scales: not all right of publicity claims implicate the same concerns. Here, NCAA
Football was different from the traditional subject matter of right of
publicity cases, both quantitatively and qualitatively.
Quantitatively, the sheer number of virtual actors involved
made a difference. The game’s cast of
thousands gained particular significance in determining “whether the source of
the product marketability comes from creative elements or from pure
exploitation of a celebrity image.”
There was no evidence that Sam Keller possessed any personal marketing
power, as distinguished from the appeal of the game’s creative aspects, and in
any event, the sheer numbers involved “inevitably diminish the significance of
the publicity right at issue.” In the
key California cases, the celebrities were the only subject matter, or they
were pivotal characters—they were “central to the production,” and contact with
consumers was “immediate and unavoidable,” whereas one could play NCAA Football thousands of times without
ever encountering a given avatar.
Qualitatively, NCAA
Football was based on publicly available data. True, EA solicited and received information
directly from colleges and universities, but that information was hardly
proprietary—it was statistics for players, found all over the place. This was indistinguishable from C.B.C. Distribution.
The dissent also addressed whether “any use of a likeness
founded on publicly available information is transformative.” The hypothetical
virtual Tom Brady ad, the dissent reasoned, was inapposite because (1)
commercials aren’t interactive, and (2) Brady had established marketing power,
as plaintiffs didn’t. (Sigh. This is what you get when you fail to
distinguish commercial from noncommercial speech—a bunch of other distinctions
that don’t work very well.)
Here, the structure of the game wasn’t founded on exploiting
individual publicity rights—the players were unidentified by name, though one
could easily put names to stats.
Anonymity bore on whether the product’s marketability was driven by an
individual celebrity, or by the game itself.
(One might distinguish between marketability driven by realism and marketability driven by desire to possess some artifact representing
the celebrity avatar, though again that requires a level of psychological
inquiry I doubt courts can handle.) The
lack of names also distinguished No Doubt,
“where the whole point of the enterprise was the successful commercial
exploitation of the specifically identified, world-famous musicians.” Anyway, college athletes’ rights of publicity
are heavily restricted. This is unfair,
but the NCAA’s relationship to student athletes was beyond the scope of the
appeal. Given the quality of the right
at issue—tiny—the First Amendment balancing should favor EA.
The majority responded that EA’s use of realistic likenesses
demonstrated that it sees “value in having an avatar designed to mimic each
individual player.”
But the same is true of any right
of publicity case. The defendants in Winter
saw value in using comic book characters that resembled the Winter brothers.
Andy Warhol—whose portraits were discussed in Comedy III—saw value in using images of celebrities such as Marilyn
Monroe. In those cases, the products’ marketability derives primarily from the
creative elements, not from a pure commercial exploitation of a celebrity
image. The same is true of NCAA Football.
As the dissent pointed out, “[t]he logical consequence of
the majority view is that all realistic depictions of actual persons, no matter
how incidental, are protected by a state law right of publicity regardless of
the creative context. This logic jeopardizes the creative use of historic
figures in motion pictures, books, and sound recordings.” (In practice, I expect the dissent will be
wrong, given the persistent medium discrimination in which courts engage—but it
could be right about motion pictures!)
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