Without comment, the Supreme Court on Monday declined to side with Electronic Arts’ claim that it had a First Amendment right to use likenesses of professional football players in one of the world’s most popular video games without their consent. Madden NFL.
EA’s petition to the Supreme Court had drawn significant interest from academics, digital rights groups (PDF), and others. The dispute was at the intersection of right-of-publicity claims balanced against modern technology that enables virtual, realistic images of people — in this case, professional athletes who want a slice of the financial pie.
In its petition to the judges, the creator of the game claimed that it should not be sued simply because it made a game that looked too real to almost reflect reality. The company wanted the Supreme Court to uphold its claim that the virtual roster’s lifelike image was covered by the First Amendment.
“According to the Ninth Circuit, the depiction of a person’s image or likeness in an expressive work enjoys First Amendment protection against a right-of-publicity claim only if the image sufficiently alters or ‘transforms’ the plaintiff’s image or likeness.” That rule is constitutionally perverse: it only affords First Amendment protections to fanciful or distorted representations, not to accurate or realistic ones. The rule also terrifies the expression, both because it is difficult to predict what a court will decide, is sufficiently “transformative,” and because such an investigation inevitably requires a court to make a subjective judgment as to whether an image is “artistic,” thus deserving of protection, or “literal,” and thus subject to liability,” EA said in its petition (pdf) to the Supreme Court EA referred to last year’s decision (pdf) of the 9th US Circuit Court of Appeals.
Here’s what 9th Circuit Judge Raymond Fisher said about EA’s position, which the Supreme Court upheld: “We believe that EA’s use of former players’ likenesses is not incidental because it is central to its main commercial EA’s goal: to create a realistic virtual simulation of football games involving current and former NFL teams.” The same San Francisco-based appeals court sided with NCAA college football players in their lawsuit against EA, a 2013 ruling that resulted in a $40 million settlement.
Lawyers for players suing EA had urged the judges (pdf) to deny that they would weigh the case and to avoid the First Amendment issues that EA has raised because “there is no evidence that these or any other decision on the right of publicity the exercise of expressive rights.”
The right of publicity was first recognized in 1953 in a lawsuit over professional baseball cards. The claim is mostly invoked by celebrities and professional athletes. The right to publicity gives people an economic right to their name and likeness so that they can benefit from the commercial value of their identity.
Players suing EA included Michael Davis, Vince Ferragamo, Billy Joe Dupree, Samuel Michael Keller and others. The Supreme Court’s inaction on Monday is likely to pave the way for a settlement.