NCAA basketball and football players’ right of publicity and antitrust claims continue to proceed in court

The long-running lawsuit by NCAA basketball and football players concerning the use of their names, images, and likenesses by the NCAA and video game companies has had two important recent developments.

The development that is of more interest to this blog was the 9th Circuit Court of Appeals’ ruling that a video game company, EA Sports, could not rely on First Amendment defenses to bar claims that their use of players’ likeness could violate their California right of publicity (click here for the court’s ruling on this issue).  The California right of publicity protects against the use of another’s likeness in products or in ads without that person’s consent.

In this case, the primary First Amendment defense was the transformative use defense, which essentially looks at whether the use of the person’s likeness adds enough creative elements to transform the likeness into more than just that person’s likeness.  Factors that courts consider include (1) if the likeness is the entirety of the use or if the likeness is just one element in the use; (2) the extent the use is looked upon at the user’s expression of the likeness vs. just the likeness itself; (3) the extent that creative elements predominate over the likeness; (4) whether the economic value of the use is primarily due to the likeness of the person; and (5) the extent the use can be considered a portrait or traditional likeness.

The video game in question, NCAA Football, allows game players to play a particular school’s football team from a particular season.  The football players have similar appearances (height, weight, skin tone) to the actual players.  The actual names of the football players can be uploaded with some effort.  The games are played in stadiums similar in appearance to the actual stadium.  The size and abilities of the football players can remain the same or can be changed.

Based on the above factors, the court found EA Sports’ use of NCAA player’s likenesses (in particular former Nebraska quarterback Sam Keller) was a violation of their right of publicity as the use of the likenesses were literal recreations of the players playing the same sports and in the same settings.

The other development concerns the ability to bring their antitrust claims in a class action lawsuit, wherein the court ruled a class action case could be brought by current and future players but not by former players.  This Sports Illustrated article explains the nuances of class action lawsuits as it relates to this case, and another Sports Illustrated article has a good summary of the case.

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