Home -> Law Blog Directory -> Intellectual Property Law Blogs -> Patent Arcade

Intellectual Property Law

: Patent Arcade

Case Update: Keller v. Electronic Arts, Inc.

On Monday, February 8, 2010, the U.S. District for the Northern District of California ruled on a motion to dismiss filed by Electronic Arts (?EA?), the National Collegiate Athletics Association (?NCAA?), and the Collegiate Licensing Company (?CLC?) in Keller v. Electronic Arts, Inc., Case No. 09-cv-01967-CW.

While the court granted the defendants? motion to dismiss as to some of Keller?s claims, the court denied the motion to dismiss as to some of Keller?s claims against EA.

Keller, a former starting quarterback for the Arizona State University (?ASU?), filed this lawsuit last May against EA and the other defendants, alleging that EA used his likeness without his consent and that the NCAA enabled this use. Among the various claims that Keller asserted against the defendants is a claim against EA for alleged violations of California?s statutory and common law rights of publicity.

In this round of motions, EA argued that Keller?s claims were barred by the First Amendment and other possible defenses under California law.

As to EA?s First Amendment argument, the court stated that ?[a] defendant may raise an affirmative defense that the challenged work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity?s fame. . . . The defense poses what is essentially a balancing test between the First Amendment and the right of publicity.? Slip. Op. at 6-7 (internal quotes and citations omitted).

With this standard in mind, the court determined that ?EA?s depiction of [Keller] in ?NCAA Football? is not sufficiently transformative to bar his California right of publicity claims as a matter of law.? Slip. Op. at 9. In arriving at this conclusion, the court noted that the quarterback for ASU in the game shares many of Keller?s characteristics, as the in-game ASU quarterback wears Keller?s jersey number, has the same height and weight, and is purportedly from the same home state. Id.

In addition, in ruling that EA was not entitled to the ?public interest? and ?public affairs? defenses, which EA asserted under California law, the court noted that EA?s game goes beyond mere reporting of ?just the players? names and statistics; it offers a depiction of the student athletes? physical characteristics and, as noted, enables consumers to control the virtual players on a simulated football field.? Slip Op. at 13; see id. at 13-15.

We will continue to follow this case.

Full post as published by Patent Arcade on February 13, 2010 (boomark / email).