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EA Loses 9th Circuit Fracas With NFL Retirees

SAN FRANCISCO (CN) - Electronic Arts cannot use incidental use as a defense for its depictions of football players in video games, the 9th Circuit ruled Tuesday, rejecting the company's claims that the athletes' images add little commercial value.

Retired NFL players Michael Davis, Vince Ferragamo and Billy Joe Dupree had brought the lawsuit against EA in 2010, objecting to the use of avatars that closely resembled them in "Madden 2009," a game that allowed players to pit "historical teams" against one another.

EA had hoped to avoid paying licensing fees with some slight changes to all the retired players' characteristics. In one case, the company changed a player's weight by a few pounds.

U.S. District Judge Richard Seeborg disagreed with EA that California's anti-SLAAP (Strategic Litigation Against Public Participation) law required dismissal of the lawsuit, and a three-judge panel of the 9th Circuit affirmed Tuesday.

"EA goes to substantial lengths to incorporate accurate likenesses of current and former players, including paying millions of dollars to license the likenesses of current players," Judge Raymond Fisher wrote for the court. "Having acknowledged the likenesses of current NFL players carry substantial commercial value, EA does not offer a persuasive reason to conclude otherwise as to the former players."

Fisher also found no basis for EA's "sweeping statement" that the likeness of any individual player "has only a de minimis commercial value" since 'Madden NFL' depicts several thousand players.

EA's transformative-use defense, which characterized the games as creative enough to fall under First Amendment protections, meanwhile remains precluded by the 9th Circuit's ruling in Keller v. EA.

That case involved a class of former college athletes upset over the uncompensated use of their images in EA's NCAA-based video games.

The court found in 2013 the games were not covered under the First Amendment's protections for artistic creations.

That same reasoning applied in Tuesday's ruling.

"Like 'NCAA Football,' 'Madden NFL' replicates players' physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life - playing football for an NFL team," Fisher wrote. "Neither the individual players' likenesses nor the graphics and other background content are transformed more in 'Madden NFL' than they were in 'NCAA Football.' Indeed, EA does not attempt to distinguish 'Madden NFL' from 'NCAA Football.' Instead, EA contends the court erred in Keller by focusing on whether the individual avatars were transformed, rather than whether the work as a whole was transformative. Absent 'intervening higher authority,' however, we are bound by the factually indistinguishable holding in Keller."

The panel also rejected EA's claim that the players' right of publicity was barred by public interest, another defense EA had tried in Keller.

"In Keller, we rejected EA's reliance on these defenses, explaining that, unlike the cases on which EA relied, involving a documentary, a newspaper photograph and a game program, EA was 'not publishing or reporting factual data,' " Fisher wrote.

Though EA's "Madden NFL" does contain some factual data about current and former football players, it is still a game like "NCAA Football," the court found.

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