9th Circuit sacks video-game maker in lawsuit brought by retired NFL players for licensing fees
Electronic Arts suffered another defeat at the hands of football players to whom the software company was looking to avoid paying licensing fees.
Courthouse News reported that the San Francisco-based 9th U.S. Court of Appeals ruled (PDF) Tuesday that EA cannot avoid paying retired players for using their likenesses in Madden NFL 09. EA had appealed a lower court decision handed down in 2013 in favor of the players finding that EA could not cite incidental use as a defense for using the players’ likenesses. Retired players Michael Davis, Vince Ferragamo and Billy Joe Dupree had sued EA in 2010, objecting to EA’s use of avatars that closely resembled them. Hoping to avoid paying licensing fees, EA had made some minor changes to the avatars’ height, weight and appearance.
“EA goes to substantial lengths to incorporate accurate likenesses of current and former players, including paying millions of dollars to license the likenesses of current players,” Judge Raymond Fisher wrote for the court. “Having acknowledged the likenesses of current NFL players carry substantial commercial value, EA does not offer a persuasive reason to conclude otherwise as to the former players.” EA was represented by Keker & Van Nest while the players were represented by Henri Law Group.
The court also cited its 2013 decision in Keller v. EA, which threw out EA’s “transformative use” defense. EA had tried to argue that its NCAA Football video game, which utilized the likenesses of thousands of unpaid college football players, was so transformative that it qualified for protection under the First Amendment. The court, however, disagreed and found that EA had to pay the players in question.
In Tuesday’s opinion, the unanimous three-judge panel found that the facts from Keller were virtually indistinguishable. “Like NCAA Football, Madden NFL 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,” Fisher wrote in his opinion. “Neither the individual players’ likenesses nor the graphics and other background content are transformed more in Madden NFL than they were in NCAA Football. Indeed, EA does not attempt to distinguish Madden NFL from NCAA Football. Instead, EA contends the court erred in Keller by focusing on whether the individual avatars were transformed, rather than whether the work as a whole was transformative. Absent ‘intervening higher authority,’ however, we are bound by the factually indistinguishable holding in Keller.”