Davis v. Electronic Arts, Inc.

Denial of a motion to strike under the anti-strategic lawsuit against public participation ("SLAPP") statute in California is proper when the use of former NFL players' likenesses are central to the commercial purpose in production of a video game.

“The plaintiffs, [two former NFL players,] alleged that the video game Madden NFL, produced by Electronic Arts (“EA”), similarly includes, without authorization, accurate likenesses of plaintiffs Michael Davis and Billy Joe Dupree, as well as roughly 6,000 other former NFL players who appear on more than 100 historic teams in various editions of Madden NFL. The plaintiffs asserted claims for right of publicity under California Civil Code § 3344 and California common law, conversion, trespass to chattels and unjust enrichment on behalf of themselves and all former NFL players depicted in Madden NFL. EA moved to strike the complaint as a strategic lawsuit against public participation (“SLAPP”) under California’s anti-SLAPP statute, California Code of Civil Procedure § 425.16. The district court denied the motion." EA appealed contending that the transformative use, public interest, incident use defenses, and the Rogers test allows the use of former players' likenesses in the Madden NFL video game series. The Ninth Circuit held that EA did not show "that its unauthorized use of former players’ likenesses in the Madden NFL video game series qualifie[d] for First Amendment protection under the transformative use defense, the public interest defense, the Rogers test or the incidental use defense," because the use of player likenesses is central to the commercial purpose of the video game series. AFFIRMED.