In re: NCAA Licensing Litig.

Under the California Supreme Court’s “transformative use” test, a video game creator does not have a First Amendment right to use a college football player's realistic likeness in a video game when it recreates the player in the very setting where he achieved his celebrity status.

Electronic Arts (“EA”) created a video game that used players' and teams' likenesses, jersey numbers, and the identifying attributes of the team stadiums. Although the game did not include the players' names and true home towns, video game users were, however, able to enter in the players’ exact names. The 2005 edition of the game featured an avatar with the likeness and jersey number of Samuel Keller, a former college football player. The 2008 game also featured a player almost identical to Keller. Keller sued EA for using his likeness in the video game series, claiming that EA violated his right of publicity under California Civil Code § 3344 and California Common Law. EA moved to strike the complaint as a strategic lawsuit against public participation under California's anti-SLAPP statute and raised four First Amendment affirmative defenses. The district court held that EA had no First Amendment defense against Keller’s right-of-publicity claims. Applying the "transformative use" test, the Ninth Circuit found that EA's use of Keller's likeness did not qualify for First Amendment protection. For the "transformative use" test to bestow First Amendment protection, the recreated version must be "transformative" and not simply a realistic recreation. The panel further held that California state law defenses did not protect EA from Keller’s claims. Since EA produced a game, rather than factual data, there was no public interest in protecting EA’s product. AFFIRMED.