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‘Madden NFL’ Maker & Players Scrimmage Before Judge

Electronic Arts’ “Madden NFL” games do not rip off players' likenesses, the video game maker insisted before a federal judge Friday.

SAN FRANCISCO (CN) — Electronic Arts’ “Madden NFL” games do not rip off players' likenesses, the video game maker insisted before a federal judge Friday.

After seven years of legal wrangling, attorneys for Electronic Arts and retired NFL players were back before U.S. District Judge Richard Seeborg, arguing over whether avatars depicting players in EA’s games violate California’s right of publicity law.

EA brought a summary judgment motion on part of the players’ statutory claim under Civil Code Section 3344, which prohibits the use of a person’s name, voice, signature, photograph or likeness. The case is being fought over likeness.

“It appears that the main battle is going to be over whether or not the visual images we’re talking about are readily identifiable,” Seeborg said, meaning whether someone playing a Madden NFL game can look at the game avatar and immediately assume what NFL player that avatar is depicting.

Michael Davis, Vince Ferragamo and Billy Joe Dupree sued EA in 2010 on behalf of 6,000 retired NFL players, 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.

Davis claimed EA tried to avoid paying him for using his likeness in the 1979 Buccaneers team by altering his jersey number and field position, though gamers can still recognize him by his name, age, height and weight.

In a 2012 ruling, Seeborg refused to dismiss the case under California’s anti-SLAAP (Strategic Litigation Against Public Participation) law and a three-judge panel of the Ninth Circuit affirmed that decision in 2015, ruling that the games were not covered under the First Amendment’s protections for artistic creations.

But Seeborg later refused to certify a nationwide player class, saying he could not apply California law to every proposed class member in the country.

On Friday, EA’s attorney Nicholas Marais argued that Madden NFL’ s 7,582 avatars all have generic faces, so a gamer can’t tell who the players are just by looking at their images. The game omits player names, but displays age, height, weight, years as a pro, position and team.

“Likeness has been repeatedly identified as a visual image,” Marais said.

Players’ attorney Brian Henri said those stats should be enough to make the players readily identifiable. He said Seeborg should be able to consider other factors, such as the game’s marketing materials and player stats to determine likeness.

But Seeborg seemed to lean in EA’s favor on the likeness issue. He distinguished Madden NFL from White v. Samsung Electronics, where Vanna White accused the electronics manufacturer of using her likeness without consent in a VCR ad. The ad depicted a robot with blonde hair in a dress, standing next to a game board that conspicuously resembled the Wheel of Fortune.

Seeborg said he’d played the Madden NFL game, and that he needed to refer to outside materials to identify the avatars as specific players.

“I only know their distinctive characteristics because I have to make reference to some other material, which is undeniably included in the game. If I simply look at the image of the person I’m not going to be able to determine who that is without the other information,” Seeborg said.

Henri said it would still be statutory violation, since the games are marketed to appeal to consumers’ desire to play as specific teams and players. There is economic value in being able to play Madden NFL as Joe Montana.

“If the player wants to imagine it’s Joe Montana, that’s their right to do, but it’s not a 3334 violation,” Seeborg said.

If EA wanted players to imagine themselves as Joe Montana, did EA fail in that intent if the avatar doesn’t have Joe Montana’s name and doesn’t look anything like him?

“If they try but don’t succeed and end up with an image that people aren’t necessarily going to know, it wouldn’t be a 3334 violation, would it?” Seeborg asked.

Henri said it was clear that consumers knew they were supposed to be playing as certain famous players.

“They market it as being able to go back in time and play historic teams,” Henri said.

Marais said the marketing was irrelevant, and that one need only take one look at the anonymous, generic avatars to see no right-of-publicity violation.

“Information and text doesn’t constitute a visual image and doesn’t rise to the level of a likeness,” he said.

“Interesting questions,” Seeborg said. “I’ll go back and review and issue an order.”

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