Earlier this week, the NCAA’s petition to the U.S. Supreme Court concerning the case of Keller v. Electronic Arts Inc., 724 F.3d 1268 (9th Cir. 2013) was denied. The author of http://www.RightofPublicity.com joined SAG in filing an amicus brief in that case at the lower court level, and the Ninth Circuit’s ruling and analysis were correct under the circumstances.
Electronic Arts, for its part, had already settled the case. The NCAA petitioned the Supreme Court to adopt the Rogers Test to determine use of the Right of Publicity of student athletes in video games and to overturn the determination that the use of the athletes in the video game was not protected by the First Amendment.
The Rogers Test was devised as an analysis for titles and would have been entirely wrong for the Keller case. It is surprising the Rogers test was even suggested, except perhaps it was believed that if adopted the result would be something the NCAA preferred.
The Ninth Circuit’s application of the Transformative Use test was the correct test for the use and issues in question. We don’t need the U.S. Supreme Court to assist in determining that a test devised for titles should not be used in a case like Keller.