Likenesses: they're in the game (but probably shouldn't be)

Davis v. Elec. Arts Inc., No. 12-15737 (9th Cir. Jan. 6, 2015).

These guys won’t mind if EA uses their likenesses.

These guys wont mind if EA uses their likenesses.

Madden NFL, that perennial dorm-room favorite, features real NFL teams and players. That’s part of the game’s draw. By paying the NFL players’ union millions of dollars a year for the rights, the game gets to use the likenesses of current players. But the game features historical players, too. Want to do the Super Bowl Shuffle with the 1985 Bears? Want to see if you can shut out the opposition with the 1992 Cowboys defense? Would you like to replay the 2006 Super Bowl and ensure that Seattle wins, as the laws of nature and nature’s God intended? All this you can do in Madden

The problem is that EA, the maker of Madden, didn’t get permission from these past players to use their likenesses. A number of those players filed a class action, charging that EA’s failure to get a license violates the law in a number of ways—most notably by infringing on the players’ right to publicity under California law. 

EA fought back by filing an anti-SLAPP motion. California’s anti-SLAPP law, as its name suggests, aims to curtail SLAPPs: “strategic lawsuits against public participation.” In the paradigmatic SLAPP, the little-guy defendant has criticized or is threatening to criticize the powerful plaintiff, and the plaintiff uses the lawsuit or the threat of a lawsuit to get the defendant to shut up. Anti-SLAPP laws like California’s deter these lawsuits by authorizing courts to dismiss SLAPPs early on and award the defendant attorneys’ fees or other relief. 

The question here is whether the former football players’ suit should be dismissed as a SLAPP. There are two requirements for dismissal. First, the case has to arise from the defendant’s use of free speech in connection with a public issue. Everybody agrees this requirement is met here. Under the second requirement, the players must demonstrate that “there is a probability” that they “will prevail” on their claims. That second requirement is the key issue.

EA claims that it has a bunch of defenses to the players’ claims—defenses that make it improbable that the players will prevail. Because these are affirmative defenses, however, it’s EA’s burden to show that these defenses will probably prevail. The Ninth Circuit goes through each of the defenses—the transformative-use defense, the public-interest defense, the incidental-use defense, and so on—and shoots them down. EA has not carried its burden on the defenses. And so, because the players’ suit is not a SLAPP, their claims can go forward.