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.