Transformative Use Musings

Judges in right-of-publicity cases have debated whether a transformative use should be determined based on the new work as a whole, or specifically on how a plaintiff's persona is included in the new work. The issue recently came up before the U.S. Court of Appeals for the Ninth Circuit, in the class action suit by former college athletes who claim Electronic Arts (EA) violated their rights of publicity with the NCAA Football video game. In re: NCAA Student-Athlete Name & Licensing Litigation, 10-15387 (9th Cir. 2013).

EA moved to dismiss the complaint on First Amendment grounds, but the U.S. District Court for the Northern District of California denied the motion. The Ninth Circuit affirmed, noting that NCAA Football “literally recreates” elements of first-named plaintiff Samuel Keller ' a former player at Arizona State University and the University of Nebraska ' as a game avatar “in the very setting in which he has achieved renown.” The video game's players have some ability to direct an individual player's career and form teams by picking high school players. But the Ninth Circuit noted: “EA seeks to replicate each [NCAA] school's entire team as accurately as possible. Every real football player on each team included in the game has a corresponding avatar in the game with the player's actual jersey number and virtually identical height, weight, build, skin tone, hair color, and home state.”