In ruling for the plaintiffs in Davis v. Electronic Arts earlier this week, the Ninth Circuit has given us the latest interpretation of the Transformative Use test. This ruling comes only a few months following a contrasting ruling in Noriega v. Activision, in which the Transformative Use defense led to a ruling in favor of the defendant.
The Activision case centered on inclusion of former Panamanian dictator Manuel Noriega in Call of Duty: Black Ops II. Former New York Mayor Rudy Giuliani served as co-counsel for Activision, and the following Hollywood Reporter article provides good insight as well as a link to the defense’s memo in support of its motion to strike Noriega’s complaint.
It is interesting to consider if the day might ever come when Rudy Giuliani might want to assert his own Right of Publicity in response to a commercial use of some kind.
In its Davis v. Electronic Arts ruling, the court looked to its prior ruling in Keller v. Electronic Arts, where the court also rejected the Transformative Use defense advanced by EA. The court in Davis v. Electronic Arts stated that the Madden video game “replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life – playing football for an NFL team.”
There are certainly considerable differences between the extent of use, purpose of use, and commercial aspects between the use of former NFL players in the Madden game and that of Noriega in Black Ops II, so in general, I applaud the Ninth Circuit’s rejection of the Transformative Use defense in its determination, and in not taking the usual “throw the baby out with the bath water” that too-often seems to accompany rulings concerning the Right of Publicity, as in the overreaching ruling in Indiana against the heir of John Dillinger in a case against EA.
That ruling led to my effort to amend Indiana’s Right of Publicity statute in 2011 and 2012, which was passed and successfully maintained the integrity of Indiana’s Right of Publicity statute:
Here is a link to the January 6, 2015 ruling in Davis v. Electronic Arts:
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.
Two more rulings involving video games came down last week, both from the Ninth Circuit Court of Appeals.
The July 31, 2013 ruling in Jim Brown v. Electronic Arts http://www.edwardswildman.com/files/upload/BrownvEA.PDF determined that Jim Brown’s inclusion in the Madden NFL video game was not an infringement of the Lanham Act §43(a). The court used the now famously misapplied Rogers test to determine that video games rise to the same level as literary works and thus are entitled to equal First Amendment protection. Once committed to the wrong test, the Court held that under the Rogers test Jim Brown’s likeness was artistically relevant to the game, also noting that there were no facts showing that his inclusion misled consumers about his involvement with the game.
The July 31, 2013 Brown ruling is only in relation to the Lanham Act claim. The true nature of Jim Brown’s lawsuit is primarily of a Right of Publicity nature (though the Rogers test would have been the wrong test to apply even if the ruling had been on a Right of Publicity claim). The Court says in a footnote: “We emphasize that this appeal relates only to Brown’s Lanham Act claim. Were the state causes of action before us, our analysis may be different and a different outcome may obtain.”
This point is reinforced by a ruling in another case on the same day, by the same judge, on similar facts but different claims. Specifically, consider the July 31, 2013 ruling by in Sam Keller v. EA and NCAA, No. 10-15387, http://www.edwardswildman.com/files/upload/KellervEA.PDF Here, the Right of Publicity was the claim being considered and the Court distinguished the claims from those in the Jim Brown case. The Court applied the transformative use test, providing a better fit in most Right of Publicity situations than the Rogers test, which was created for application to titles. The ruling was in favor of Plaintiff Sam Keller of course because the objective was to recreate Keller as accurately as possible–the antithesis of a transformative use.
Perhaps we have not seen the last of Jim Brown’s claim.
Earlier this week, a ruling from the Third Circuit came down in favor of former Rutgers quarterback Ryan Hart in his claim against video game manufacturer Electronic Arts (EA). In short, the ruling concludes that the use of Hart in the NCAA football video game is not transformative. This of course makes perfect sense, as the objective in sports video game programming is to make things as realistic as possible. In other words, the goal is to transform as little as possible.
The court also explains in its ruling that the oft-cited Rogers test is not the best fit for the situation presented in Hart’s claim against EA, and confirmed that the First Amendment does not trump the Right of Publicity in a non-transformative, commercial use such as the Right of Publicity.
Here is a link to the court’s ruling: