SAN FRANCISCO (CN) – Back in federal court on Thursday over retired NFL players’ right of publicity, the players’ case against video game maker Electronic Arts again comes down to whether the average gamer would be able to tell who they are.
“The base line is its plaintiffs’ obligation to prove that their identity was actually used,” EA attorney James Slaughter said.
The case goes back to 2010, when Michael Davis, Vince Ferragamo and Billy Joe Dupree sued EA 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.
After the Ninth Circuit affirmed that EA’s games were not covered under the First Amendment’s protections for artistic creations, U.S. District Judge Richard Seeborg nonetheless refused to certify a nationwide player class, saying he could not apply California’s right of publicity law to every proposed class member in the country.
Then, in a 2017 ruling, Seeborg granted EA partial summary judgment on its California statutory right of publicity claim, finding the player avatars were not readily identifiable based on their visual characteristics.
On Thursday, it felt like déjà vu in Seaborg’s courtroom as the parties argued again over the right of publicity, this time under common law.
Slaughter said the NFL players simply can’t prove that other people can identify them when playing the game.
“”The bottom line is it’s the plaintiffs’ obligation to come forward with evidence that they are identifiable beyond their own say so,” Slaughter told Seeborg.
Turning to the players’ attorney Brian Henri, Seaborg asked, “If EA’s intent was to try to replicate Vince Ferragamo, but they failed because nobody in the consuming public recognizes him, wouldn’t that be end of your right of publicity claim?”
“No,” Henri said. “EA is exploiting the commercial value of the players by marketing the game as a simulation.”
“But it doesn’t work to misappropriate something if no one recognizes the avatar,” Seaborg said. ‘“Your clients would not have suffered because no one bought it or used it with the idea in mind that it was your client.”
Henri said the players have evidence that EA designed its Madden games so the players “could be identifiable from the information with the game.” He also said EA marketed official guides, albeit ones published by third parties, that tout the experience of reliving the glory of historic teams. While the game omits the NFL players’ names, the guides show players how to edit the avatars for “optimal realism.”
Henri had also submitted video evidence taken from YouTube of players doing just that. “There’s also a video of a Rams game where you can see clearly it has Vince Ferragamo on the quarterback’s back,” he said.
The NFL players also took another shot at class certification on Thursday, asking Seeborg to certify a nationwide player class narrowed to those whose common law publicity rights were affected by distribution of the Madden game within California.
Slaughter questioned whether the class could be adequately ascertained. Holding up a spreadsheet of possible class members, he said. “There are 155 players named Steve Smith. They are all 25 years old and 250 pounds. There is simply no way, based upon this spreadsheet, that anyone would be able to figure out which player is who.”
Seeborg was unruffled by the prospect, saying he’s seen worse. Besides, he said, difficulty in ascertaining class members doesn’t bar certification. “You’re presenting a lot of legitimate concerns about how it’s going to be a difficult proposition to identify who’s in the class and who’s not, but this is not in the nature that I’ve seen before— that it is so much of an obstacle that it would preclude certification,” he said.
Seeborg took the arguments under submission.