Electronic Arts, Inc. (EA Sports) continues to clash with retired NFL players over video game publicity rights. The retired players are alleging that EA’s Madden NFL games violated their publicity rights. The video game maker is asking the Ninth Circuit Court of Appeals to adopt a new publicity rights standard that would effectively bar publicity rights claims on any “expressive works” such as movies, television programs, books, or video games.
EA Sports is arguing that its use of the players’ likenesses in video game avatars is protected by the First Amendment of the U.S. Constitution as “transformative use,” and therefore the claims should be dismissed. EA Sports is also arguing that use of each plaintiff’s likeness was de minimis, and stated in its brief that, “the avatars they complain about were merely a few of the thousands of virtual athletes in the Madden NLF video game. Where the use of plaintiff’s name or likeness is incidental in relation to the defendant’s work as a whole, the use is not actionable under the right of publicity.”
Davis v. EA is not the first case against the video game maker, which has been embroiled in similar disputes with NCAA college football athletes and other professional athletes over the last few years.
If you are an intellectual property holder and questions about your rights, or are an athlete who has questions about use of your public image by others, you need an experienced Georgia business litigator who understands the ins and outs of sports and intellectual property litigation on your side. Attorney James J. (“Jim”) Thomas II has more than 35 years of courtroom experience in the Atlanta area, and has represented professional athletes, individuals and businesses of all sizes. Jim is a business litigation expert who can handle complex business litigation as well as analysis, evaluation, and resolution of existing and potential litigation. Give Jim a call at 404-869-5248 or visit www.litigationatlanta.com online.