Keller v. Electronic Arts - Reclaiming some California Publicity Protection in Video Games
Last month the Federal District Court in Northern California answered a motion to dismiss in part of the litigation involving former Arizona State University and University of Nebraska quarterback Samuel Keller against Electronic Arts and the NCAA. Electronic Arts tried to have its case dropped because it claims First Amendment rights to use the names and likeness of players, based on California case law. In particular, the decision of Kirby v. Sega, 50 Cal.Rptr.3d 607 (2006), found the First Amendment to bar publicity rights cases involving video games. While the appellate court in Kirby purported to apply the transformative test set forth by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 391, 106 Cal. Rptr.2d 126, 21 P.3d 797 (2001), it essentially found the creation of a video game sufficiently transformative as to make every depiction protected by the First Amendment:
Undoubtedly this raises the stakes in this case and will likely lead to a very visible battle over blanket first amendment protection for communicative works like films and video games (which have First Amendment protection).
Personally, I favor a blanket rule that communicative works - films, books, publications and video games are exempt from publicity rights; goods, services and advertisements for same are per se violative of publicity rights without written permission; and the transformative test is for tee-shirts, souvenirs and similar items where the primary intrinsic value is the content on the item rather than the item itself. Such a rule would fix 95% of the publicity rights confusion.
Ulala is more than a mere likeness or literal depiction of Kirby. Ulala contains sufficient expressive content to constitute a "transformative work" under the test articulated by the Supreme Court. First, Ulala is not a literal depiction of Kirby.. As discussed above, the two share similarities. However, they also differ quite a bit: Ulala's extremely tall, slender computer-generated physique is dissimilar from Kirby's. Evidence also indicated Ulala was based, at least in part, on the Japanese style of "anime." Ulala's typical hairstyle and primary costume differ from those worn by Kirby who varied her costumes and outfits, and wore her hair in several styles. Moreover, the setting for the game that features Ulala—as a space-age reporter in the 25th century—is unlike any public depiction of Kirby. Finally, we agree with the trial court that the dance moves performed by Ulala—typically short, quick movements of the arms, legs and head— are unlike Kirby's movements in any of her music videos. Taken together, these differences demonstrate Ulala is "transformative," and respondents added creative elements to create a new expression.In Keller, by contrast, the court gave a very thorough analysis for a mere motion to dismiss. Although it cited to Kirby v. Sega once, it did not follow the blanket First Amendment protection Kirby provided to video games, instead sticking with the transformative test borrowed from copyright fair use by the California Comedy III decision. In particular, the Keller opinion suggests that the transformative test will go much further to look at the amount of transformation involved, rather than merely looking at whether the person is interjected into a video game environment.
EA's depiction of Plaintiff in “NCAA Football” is not sufficiently transformative to bar his California right of publicity claims as a matter of law. In the game, the quarterback for Arizona State University shares many of Plaintiff's characteristics. For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state. EA's depiction of Plaintiff is far from the transmogrification of the Winter brothers. EA does not depict Plaintiff in a different form; he is represented as he what he was: the starting quarterback for Arizona State University. Further, unlike in Kirby, the game's setting is identical to where the public found Plaintiff during his collegiate career: on the football field.This certainly does not end the question of transformation. Stating that the work is not sufficiently transformative as a matter of law does not mean that a jury might not find sufficient transformation as a matter of fact, based on the evidence - only that the factual question will need to be litigated fully (and at considerable expense).
Undoubtedly this raises the stakes in this case and will likely lead to a very visible battle over blanket first amendment protection for communicative works like films and video games (which have First Amendment protection).
Personally, I favor a blanket rule that communicative works - films, books, publications and video games are exempt from publicity rights; goods, services and advertisements for same are per se violative of publicity rights without written permission; and the transformative test is for tee-shirts, souvenirs and similar items where the primary intrinsic value is the content on the item rather than the item itself. Such a rule would fix 95% of the publicity rights confusion.
