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Maddeningly Mismated Matches
In paired opinions rendered the same day (July 31) by the same judge (Jay Bybee), the Ninth Circuit reached seemingly directly contrary conclusions in virtually identical cases concerning the balancing of intellectual property rights and First Amendment interests. In one of the two decisions, Brown v Elec. Arts, Inc., 107 U.S.P.Q.2d 1688 (9th Cir. July 31, 2013), the court upheld the dismissal on First Amendment grounds of a Lanham Act false endorsement claim by football star, Jim Brown, who objected to use of his likeness in Electronic Arts' “Madden NFL” video game. In the other, In re NCAA Student-Athlete Name & Likeness Licensing Litig., 107 U.S.P.Q.2d 1629 (9th Cir. July 31, 2013), the same court sustained the district court's refusal to dismiss a putative right of publicity class action claim by former college football star, Samuel Keller, whose likeness was used in another Electronic Arts video game, “NCAA Football.” Here, the court held that Electronic Arts had no viable First Amendment defense.
The Rogers Test
The basis of the ruling against Brown was the Second Circuit decision, Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), which affirmed a grant of summary judgment that the Federico Fellini film, “Ginger & Fred,” did not infringe the rights of the actress and former dancing partner of Fred Astaire, Ginger Rogers. Construing the Lanham Act narrowly so as to avoid needless Constitutional conflict with the First Amendment, the Second Circuit noted that “though consumers frequently look to the title of a work to determine what it is about, they do not regard titles of artistic works in the same way as the names of commercial products.” Id. at 1000. In short, consumers are not so simple-minded as to judge a book (or movie) merely by its cover. Rogers thus held that where a title has some artistic relevance to the work, it will not be deemed to violate the Lanham Act unless it is explicitly misleading. Rejecting Ms. Rogers' proposal that a title should be protected only if there is “no alternative means” to convey the intended meaning, the court explained:
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