Does ‘Madden’ Transform|NFL Retirees? 9th Circ. Asks

     SAN FRANCISCO (CN) – A little more than a year after the 9th Circuit rejected the First Amendment defense for realistically portrayed college athletes in video games, Electronic Arts was back before a three-judge panel, maintaining that free speech protects its depictions of retired players in “Madden NFL” games.
     EA lawyer Alonzo Wickers urged Judges Stephen Reinhardt, Marsha Berzon and Raymond Fisher at a hearing Thursday to consider the “Madden NFL” games as “expressive works,” on par with a book or painting, and deserving of broader protections under the First Amendment against regulation of content-based speech.
     EA used the First Amendment defense in an anti-SLAAP motion to dismiss a lawsuit brought by retired NFL players Michael Davis, Vince Ferragamo and Billy Joe Dupree in 2010, who objected to the use of avatars that closely resembled them in EA’s “Madden 2009.”
     The avatars were included as part of the game’s “historic team” game mode, and, while they did not include the players’ actual names, the players said EA had tweaked their descriptions, including their teams, jersey numbers, positions and physical characteristics, to avoid paying the players licensing fees.
     U.S. District Judge Richard Seeborg denied EA’s motion. EA appealed in 2012, but the case was stayed as Keller v. EA was pending before the 9th Circuit, where a 2-1 judge panel later affirmed denial of EA’s anti-SLAAP motion.
     A footnote in that earlier panel’s ruling says: “we reserve the question of whether the First Amendment furnishes a defense other than those the parties raise,” Wickers noted.
     The EA attorney said the panel “reserved for another day the question of whether the First Amendment provides a broader defense for right-of-publicity claims that target expressive works,” and left open for future panels the opportunity to craft a new framework for video game depictions of athletes.
     “We’re trying to provide framework for analyzing these cases that’s adequately protective of expressive works and we don’t believe the current framework does that,” Wickers said.
     He tried to distinguish the case from Comedy III Productions v. Gary Saderup, where the Supreme Court found a T-shirt depicting the Three Stooges was not artistically transformative enough to avoid right-of-publicity claims from their descendants.
     Judge Marsha Berzon seemed skeptical that a video game could rise above the level of a commercial product.
     “In other words, a video game is more of an expressive work than a greeting card or a T-shirt,” she said. “Most greeting cards are at least as expressive as a video game, probably more so.” Berzon was referring to Hilton v. Hallmark, which involved a birthday card depicting an image of the heiress Paris Hilton.
     “I would disagree with that premise, Your Honor,” Wickers said. “If you look at the video game and all the different aspects that go into EA’s video games – from a graphic design standpoint, a software standpoint, an editorial-curating standpoint -determining what teams, what skill levels to assign to different players.”
     Upon hearing Wickers say that more than 390,000 data points go into making the games, Berzon replied: “That doesn’t sound very expressive. It sounds like a bunch of data.”
     Wickers went on to discuss why the plaintiffs were included in these games. “EA made a determination, based on its review of NFL history, as to what teams qualified as historically significant teams,” he said. “That in itself is an editorial decision and in fact involves artistic expression.”
     Pointing out the shading, the design of the athletes and setting, Wickers said these elements also contribute to the games’ artistic nature. “We’d argue there’s a great deal of artistic expression embodied in that work,” he said.
     Brian Henri, an attorney for the players, disagreed. “The very purpose of the game is to have a realistic simulation of NFL players impersonating the NFL players,” Henri said. “EA admits that it used protectable likenesses without permission.” Henri said the panel should apply the transformative-use test, which determines whether a work has been changed enough to qualify as fair use. “I don’t believe there’s any open issue left for this court to decide,” he said. “In Keller, the court addressed the question of what kind of test is appropriate to apply to right of publicity claims and it held that the transformative use test is the proper test. It’s very clear that EA fails that test.”

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