Brown v. Electronic Arts, Inc.

Video games are expressive works "entitled to the same First Amendment protection as great literature, plays, or books," and, as a result, claims asserted against video game manufactures under the Lanham Act are subject to the Rogers test.

James "Jim" Brown brought suit against Electronic Arts, Inc. (“EA”) for violations of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Brown alleged that EA violated the Lanham Act by using his "likeness in EA's Madden NFL series of football video games." Applying the “Rogers test” in Rogers v. Grimaldi, the district court granted EA's motion to dismiss. Brown raised several issues on appeal, the most significant being: (1) the Rogers test was improperly applied; and (2) the district court should have considered the "likelihood of confusion" test and the "alternative means" test, rather than the Rogers test. The Ninth Circuit found that the Madden NFL video games were expressive works and were “entitled to the same First Amendment protection as great literature, plays, or books," and as such, § 43(a) claims brought against EA are subject to the Rogers test. Reviewing the facts under the Rogers test, the panel determined that Brown failed to establish that the use of his likeness was "artistically irrelevant to the Madden NFL games" and that EA "explicitly misled consumers about Brown's endorsement of the game." Of significance, Brown argued that "the use of his likeness in the game coupled with a consumer survey" establishing that consumers believed Brown to be endorsing the game satisfied the second prong of Rogers. However, the panel found the survey to be unpersuasive because it did not establish that the use of Brown’s likeness "was explicitly misleading to consumers." AFFIRMED.