Virginia Sports and Entertainment

VOL.
16:1 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL FALL 2016
Note
Delay of Game: When Will the Supreme
Court Tackle First Amendment Issue in
Madden NFL? The Uncertain Future of The
Right of Publicity
James Schwabe1
I. INTRODUCTION
Who is the greatest team of all-time? For years, sports fans and television
personalities have enjoyed the opportunity to furiously debate that question. As a
fan of the Chicago Bears, I believe there is no question that the 1985 Chicago Bears
had the greatest defense in NFL history.2 However, to the majority of Denver
Broncos fans during the 2015-16 season, that statement is incredibly controversial.3
Many fans wonder what it would be like to watch the greatest players in NFL
history play today against the competition on the NFL gridiron. Could Eric
Dickerson outrun the powerful Brian Urlacher and the 2006-07 Chicago Bears
defense?4 Madden NFL gives fans the chance of a lifetime to solve that questionat
whose expense?
A class action lawsuit brought in 2010 by former NFL players against
Electronic Arts illuminated the debate between NFL football players right to
publicity against the desire of Electronic Arts (EA) to commercialize the
1
Candidate for Juris Doctor, University of Notre Dame Law School, 2017; B.A., Butler University, 2010.
I would like to thank Associate Dean Ed Edmonds for the guidance, support, and inspiration throughout
the research and writing process of this Note.
2
See generally About the 85 Bears, ESPN.com, http://www.espn.com/30for30/film?page=85bears (last
visited, Apr. 30, 2016) (discussing the epic 1985 season and the birth of the famous 46 Defense that
changed the way teams played the game).
3
See generally Michael Rosenberg, All-Time Great Defense Make Broncos SB50 Champs, Sports
Illustrated (Feb. 8, 2016), http://www.si.com/nfl/2016/02/08/super-bowl-50-broncos-defense-von-miller-
panthers.
4
See Madden NFL 06 (Electronic Arts, Inc. 2005) (showing legendary historic teams including Joe
Montanas San Francisco 49ers and Eric Dickersons 1984 Los Angeles Rams); see also Eric Dickerson:
Career Stats, NFL.com, www.nfl.com/player/ericdickerson/2500389/careerstats (last visited, Apr. 30,
2016) (Dickerson was a Hall of Fame running back who accumulated 13,259 yards from scrimmage and
90 touchdowns in his twelve NFL seasons).
120
FALL 2016 FIRST AMENDMENT ISSUE IN MADDEN NFL VOL.16:1
popularity behind the National Football League.5 The case involved the editions of
Madden NFL from 2001-09 that had featured classic teams from the leagues
history.6 Those players did not appear under their own name or uniform number, but
all other identifying traits such as height, weight, ethnicity, and position were
consistent.7 The players also were rated to perform like their real-word counterparts
and a unique feature within the game allowed gamers to edit rosters and put in the
players real names and numbers. Unlike in the current versions of the video game
where the former players who appear in the Ultimate Team8 mode are paid for
their appearance, EA did not pay to license the players likenesses on the historic
teams from 2001-09.9
On appeal, the Ninth Circuit was tasked with deciding whether or not the case
should be dismissed on the grounds articulated by EA that the former players
likenesses should have been considered incidental and protected by the First
Amendment.10 In an alarming decision for EA, the Ninth Circuit rejected that claim
holding, EAs use of the former players likenesses is not incidental because it is
central to EAs main commercial purpose to create a realistic virtual simulation of
football games involving current and former NFL teams.11
This case became particularly interesting due to the recent allegations against
EA at the collegiate level that ultimately ended in a settlement that resulted in the
end of the National Collegiate Athletic Association (NCAA) Football video
game.12 In the process of writing this paper, EA released a statement that the college
football and basketball players whose names and likeness appear in EA video games
from 2003 through 2014 will receive money from a $60 million settlement.13 Of the
players who submitted claims to be paid, 24,819 were determined to have a valid
claim; the settlement averages roughly $1,600 per player.14
The players won, right? Many would argue that the players barely saw the
benefits of their efforts, and it was not the exploited athletes that recovered, rather
lawyers received $18 million of the settlement.15 Ryan Hart, a former quarterback
for Rutgers University from 2002 to 2005, filed a class action lawsuit against EA in
5
See generally Davis v. Elec. Arts, Inc., 775 F.3d 1172 (9th Cir. 2013).
6
Id.
7
Id.
8
Ultimate Legends in Madden Ultimate Team (MUT), EASports, https://www.easports.com/madden-
nfl/news/2014/mut-legends (last visited, Mar. 5, 2016).
9
See Davis, 775 F.3d at 1175.
10
Id.
11
Id.
12
Darren Rovell, Athletes Whose Likenesses Appeared in Electronic Arts Games Will Share a $60 Million
Settlement, ESPN.com (Mar. 15, 2016), http://espn.go.com/college-sports/story/_/id/14980599/college-
football-basketball-players-receive-average-1600-settlement-electronic-arts.
13
Id.
14
Id.
15
See generally id.
121
VOL.16:1 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL FALL 2016
2009 alleging a violation of the right of publicity.16 Based on the games avatar
matching Harts hair color, hair style and the avatars accessories mimic[ing]
those worn by [Hart] during his time as a Rutgers player, Hart claimed the game
did not alter or transform his identity in a significant way to warrant First
Amendment protection.17 In addition to Hart, Sam Keller, a quarterback for Arizona
State in 2005 and the University of Nebraska in 2007, filed a putative class action
suit in the District Court for the Northern District of California against EA, the
NCAA, and Collegiate Licensing Company (CLC) in 2009.18 Kellers right of
publicity claim was based on the alleged use of his biographical information and
likeness in the 2005 and 2008 editions of NCAA Football.19 The Ninth Circuit held
EAs alleged use of Kellers likeness [did] not qualify for First Amendment
protection as a matter of law because it literally recreate[d] Keller in the very setting
in which he has achieved renown.20 As a result of these cases, the Third Circuit and
Ninth Circuit both applied the transformative use test that helped create a
foundation for legal analyses in a video game industry that lacked coherence and
reliability.21
Recently, the Supreme Court made the decision to deny certiorari and refused to
hear a case not only on the use of football players in video games, but the Court
dismissed the opportunity to once and for all implement stability in the realm of the
right of publicity.22 Many experts on this particular topic were outraged by the
Courts dismissal because they saw it as an injustice to a troubled area of the law.23
However, the Court hid behind their fear of upsetting precedent, facing a divided
court without Justice Scalia, and refused to answer the question as to which test
should be implemented: the transformative test, the predominant test or the
relatedness test.24
If this case had been granted certiorari, it would have been the first time since
1977 that the Supreme Court ruled on a right of publicity case; thus potentially
16
Hart v. Elec. Arts, Inc., 808 F. Supp. 2d 757, 762 (D.N.J. 2011), revd, 717 F.3d 141, 145 (3d Cir.
2013).
17
Id. at 166.
18
Keller v. Elec. Arts, Inc., 724 F.3d 1268 (9th Cir. 2013); In re NCAA Student-Athlete Name & Likeness
Licensing Litig., 724 F.3d 1268 (9th Cir. 2013) [hereinafter In re NCAA].
19
In re NCCA, 724 F.3d at 1272.
20
Id. at 1271.
21
See Geoffrey F. Palachuk, Note, Transformative Use Test Cannot Keep Pace With Evolving Arts, The
Failings of the Third and Ninth Circuit, 16 U. Den. Sports & Ent. L.J. 233, 237 (2014).
22
Jennifer E. Rothman, Supreme Court Denies Review of Davis v. Electronic Arts, Rothmans Roadmap
to the Right of Publicity (Mar. 21, 2016), http://www.rightofpublicityroadmap.com/news-
commentary/supreme-court-denies-review-davis-v-electronic-arts.
23
Id.; see also Jennifer. E. Rothman, Constitutional Law and Intellectual Property Law Professors Call on
Supreme Court to Review Davis, Rothmans Roadmap to the Right of Publicity (Nov. 4, 2015),
http://www.rightofpublicityroadmap.com/news-commentary/constitutional-law-and-intellectual-property-
law-professors-call-supreme-court.
24
Id.
122
impacting the gaming industry and public figures rights in the future.25 This error
leaves the legal questions surrounding the right of publicity unsolved and as the
modern world continues to evolve the use of technology, the Supreme Courts
failure to recognize a need for answers has hindered the advancement of
technological creations as well as the ability to protect ones right of publicity.
Furthermore, not only will the gaming industry remain unstable with respect to the
legal parameters of the right of publicity, states across the country will continue to
analyze the right of publicity and First Amendment defenses under different
standards and different tests. Should the transformative test remain in effect to
distinguish defendants who are unjustly enriching themselves or is that test
misconstruing the purpose of the right of publicity? If a players image is
transformed into a computer-animated avatar, is that truly the players image? If
not, what right of publicity is being harmed? This paper will attempt to answer those
questions and indicate why there is a dire need for a uniform standard on the right of
publicity across the United States as well as why the Supreme Court needs to
address the unsolved questions in the videogame industry.
Part II of this paper will start by discussing the theoretical and legal history of
the right of publicity. In doing so, Part II will analyze the role Samuel Warren and
Louis Brandeis played in advocating for the right to be let alone.26 Next, Part II
will also discuss the history of cases from Haelen Laboratories, Inc. v. Topps
Chewing Gum, Inc.,27 to Zacchini v. Scripps-Howard Broadcasting, Inc,28 to
Comedy III Productions v. Gary Saderup, Inc.,29 to No Doubt v. Activision
Publishing30 in order to illustrate the evolution of the right of publicity in the courts.
Part III will then analyze why there is a dire need for a uniform standard to resolve
the uncertainty between the statutory right of publicity, a common law right of
publicity and common law right of privacy amongst the fifty states. Part IV will
then analyze how various courts have addressed the right of publicity by applying
the transformative use test, the relatedness test, and the predominant purpose test. In
doing so, this paper will point out the flaws in the current tests and whether or not
there is a value in the current legal rule. Finally, Part V will provide an update on
25
See generally Lateef Mtima, Whats Mine is Mine but Whats Yours is Ours: IP Imperialism, The Right
of Publicity, and Intellectual Property Social Justice in the Digital Information Age, 15 SMU Sci. & Tech.
L. Rev. 323 (2012) (discussing the still-developing right of publicity and the conflict between social
rights of economic rights. Mtima illustrates how the IP Imperialist viewpoint developed after Zacchini v.
Scrippe-Howard Broad. Co. in 1977); see generally Zacchini v. Scripps-Howard Broad Co., 433 U.S. 563
(1977) (the last right of publicity case addressed by the Supreme Court that discussed the right of publicity
of a human cannonball performer).
26
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 196 (1890).
27
202 F.2d 866 (2d Cir. 1953).
28
433 U.S. 562 (1977).
29
21 P.3d 797 (Cal. 2001).
30
702 F. Supp. 2d 1139 (C.D. Cal. 2010).
123
the recent video game cases and the lawsuits filed by former collegiate student-
athletes in Hart, Keller, and Brown and will focus on the Madden NFL lawsuit, as
well as how the Court can address notions of fairness and justice by grating
certiorari in a future videogame case.
II. HISTORY OF THE RIGHT OF PUBLICITY
In the United States, state law protecting the reputation, privacy and publicity
rights of celebrities, including athletes, is still developing in the evolving world of
technology. The right of publicity has stumbled its way into society in a variety of
forms including state common law protecting the right of publicity, legislation, and
state common law protecting the right of privacy.31 The goal of the right of publicity
is to afford an economic right in ones name and likeness, so that one may profit
from the full commercial value of their identit[y].32 Specifically, the right of
publicity has worked to protect the rights of public figures to control the commercial
value and exploitation of their name or likeness and prevent others from unfairly
appropriating their identity for commercial value.33 Although this has been the goal,
it has not always been widely accepted.
A. The Theory Behind the Law
Initially, courts refused to characterize celebrity names and likenesses as

protectable rights because the courts failed to believe that fame was merchandise.34
In Hanna Mfg. Co. v. Hilerich & Bradsby Co.,35 the Fifth Circuit concluded an
31
See M.G. Matzkin, Getting Played: How the Video Game Industry Violates College Athletes Rights of
Publicity by Not Paying for Their Likeness, 21 Loy. L.A. Ent. L. Rev. 227 (2001) (discussing how
different state statutes affect an athletes right of publicity). See also Brittany Adkins, Comment, Crying
Out For Uniformity: Eliminating State Inconsistencies in Right of Publicity Protection Through a Uniform
Right of Publicity Act, 40 Cumb. L. Rev. 499 (2010) (analyzing publicity rights in New York, California,
Tennessee, and Indiana); see also J. Thomas McCarthy, The Rights of Publicity and Privacy 6:3 (2d ed.
2014) (discussing how various states have attempted to create a cause of action that protects an individual
from unauthorized commercial use of his or her likeness). See generally Cal. Civ. Code 3344(a)-(g)
(West 2016); Ind. Code. Ann. 32-36-1-132-36-1-20 (West 2016); N.Y. Civ. Rights 50 (McKinney
2016).
32
Cardtoons L.C. v. Major League Baseball Players Assn, 95 F.3d 959, 968 (10th Cir. 1996).
33
See Beth A. Cianfrone & Thomas A. Bake III, The Use of Student-Athlete Likeness in Sport Video
Games: An Application of the Right of Publicity, 20 J. Legal Aspects Sport 35, 38 (2010) (citing
McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994)).
34
Matthew J. Mitten et al., Sports and Regulation: Cases, Materials, and Problems ch. 13 (3d ed. 2013);
see generally Hanna Mfg. Co. v. Hillerich & Bradsby Co., 78 F.2d 763, 766 (5th Cir. 1935); see generally
Restatement (Third) of Unfair Competition 47 (1995).
35
78 F.2d 763 (5th Cir. 1935).
124
athlete had a valid claim for unauthorized use of his image only if used to falsely
suggest an endorsement of a product resulting in unfair competition.36 For example,
the courts would look at the possible confusion a consumer would face as to
whether or not a celebrity or an athlete had endorsed a specific product or service.37
The early beginnings of the right of publicity began with Samuel Warren and Louis
Brandeiss article that attempted to expound upon Judge Cooleys right to be let
alone concept in asserting each man has a right to prevent invasions upon his
privacy.38 Yet it was not until 1953 that Judge Jerome Frank coined the term right
of publicity in an attempt to shift the focus of the law from privacy to publicity.39
Before publicity rights were established as part of the umbrella of privacy law,
there was great debate as to its link to the greater perspective on current law
amongst Professor Melville Nimmer and William Prosser.40 Professor Melville
Nimmer41 linked the right of publicity with unfair competition and property law by
saying, every person is entitled to the fruit of his labors[and] persons who have
long and laboriously nurtured the fruit of publicity values may be deprived of them,
unless judicial recognition is given to what is here referred to as the right of
publicity.42 In advocating for the right of publicity as a property right, Nimmer
emphasized the labor theory of property as a manner of protecting the pecuniary
value in the use of a prominent persons personality.43 By 1960 there were over
300 cases dealing with the law of privacy, yet the law of privacy was still described
as a haystack in a hurricane because there were still doubts as to whether or not it
existed.44 Dean William Prosser in 1960 identified the tort of privacy appropriation
36
Hanna Mfg. Co.,78 F.2d at 766.
37
See 15 U.S.C. 1125 (2012).
38
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 196 (1890)
(addressing the technological and cultural developments invading individuals private lives, the article
expresses concern with the right of circulating portraits).
39
See generally Haelen Laboratories v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953) ([I]n
addition to and independent of the right of privacya man has a right in the publicity value of his
photograph.); see also Adkins, supra note 31.
40
See generally Melville B. Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203, 20304
(1954) ([P]ublic personality has found the use of his name, photograph, and likeness has taken on a
pecuniary value undreamed of at the turn of the century). But see generally William L. Prosser, Privacy,
48 Cal. L. Rev. 383, 385 (1960) (referring to Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y.
1902)) (rejecting right to privacy concept).
41
See Mark F. Gray, A Positive Economic Theory of the Right of Publicity, 1 UCLA Ent. L. Rev. 97, 109
(1994) (No scholar or judge has made a more important contribution to the field of entertainment law
than Professor Nimmer didHis great contribution was to provide the first reliable glosses of a new and
unruly body of case precedent and thereby provide a solid foundation for the whole field).
42
Nimmer, supra note 40, at 216.
43
Id. at 21516; but cf. Gray, supra note 41, at 10809 (Nimmer advocated a labor theory in support of
the right of publicity[However,] none of this work depended on the labor theoryI venture that
Nimmers recitation of the labor theory was obliged more by conventions of legal realist scholarship than
by anything else.).
44
See Prosser, supra note 40 (referring to Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y.
1902)) (although written almost sixty years after this case, Prosser emphasizes the development of the
125
as suggesting that a man had the right to control the use of his identity from the
appropriation of others.45 Dean Prosser discussed four distinct kinds of invasions of
four different interests of the plaintiff.46 This tort would arise when the defendant
appropriates the plaintiffs name or likeness, without consent, resulting in a benefit
or advantage for the defendant.47 In analyzing when appropriation occurs, courts
have identified a two-step analysis: (1) whether there has been appropriation of an
aspect of the plaintiffs identity;48 and (2) whether the defendant has appropriated
the name or likeness for his own advantage. However, according to Nimmer,
Prossers theory of appropriation is not a property right, it is instead something less
than a property right which is incapable of assignment.49 Against this background,
courts struggled to define precisely the right of publicity and how it should be
evaluated.
B. A Legal Right to Publicity
As legal scholars and judicial jurisprudence began to advocate for a right of

publicity, a string of cases from 1953 to 2011 began to unpack the impact the right
of publicity would have on society.50 By common law or statute, a majority of states
began to recognize a right of publicity property-based claim for unauthorized
commercial use of an individuals identity.51 As one court observed, a celebrity has
a legitimate proprietary interest in his public personalityA name is commercially
valuable as an endorsement of a product or for use for financial gain only because
right of publicity, but his categorization of this right may have caused more confusion). See also Sean
Hanlon & Ray Yasser, J.J. Morrison and His Right of Publicity Lawsuit Against the NCAA, 15 Vill.
Sports & Ent. L.J. 241, 258 (2008).
45
Prosser, supra note 40, at 39395.
46
Id. at 389 ((1) Intrusion upon the plaintiffs seclusion or solitude, or into his private affairs, (2) Public
disclosure of embarrassing private facts about the plaintiff, (3) Publicity which places the plaintiff in a
false light in the public eye, (4) Appropriation, for the defendants advantage, of the plaintiffs name or
likeness.).
47
Id.
48
E.g., name, image, personality type in some instances, fictitious stage name. All of these examples must
be identified with the plaintiff that the plaintiff would be entitled protection against its use.
49
Nimmer, supra note 40, at 209. See Sheldon W. Halpern, The Right of Publicity: Commercial
Exploitation of the Associative Value of Personality, 39 Vand. L. Rev. 1199, 122728 n.165 (1986).
50
R. Garrett Rice, Note, Groove is in the Hart: A Workable Solution for Applying the Right of Publicity
to Video Games, 72 Wash. & Lee L. Rev. 317, 328 (2015) (citing Sean D. Whaley, Note, Im a
Highway Star: An Outline for a Federal Right of Publicity, 31 Hastings Comm, & Ent. L.J. 257, 263
(2009) (tracing the expansion of the right of publicity at the federal level through federal trademark and
federal unfair competition laws)). See also Dora Georgescu, Note, Two Tests Unite to Resolve the
Tension Between the First Amendment and the Right of Publicity, 83 Fordham L. Rev. 907, 91416
(2014) (discussing the tension between the first amendment and the right of publicity and how this debate
has shaped the way courts have tried to develop the right today).
51
Mitten, supra note 34, at 1030.
126
the public recognizes it and attributes good will and feats of skill or
accomplishments of one sort or another to that personality.52
In 1953, the Second Circuit was the first court to recognize the right of publicity
as distinctly separate from the right of privacy.53 The importance of this distinction
brought to light the fear of misappropriation in a unique light stating that the claim
was no longer about using ones image without consent, but rather now the courts
saw a need to protect ones economic opportunities based on status and image in
society.54 In Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.,55 baseball
entered into a contract granting the plaintiff the exclusive right to use the ball-
players photograph in connection with the sale of plaintiffs gum.56 The
defendant, a rival chewing gum manufacturer with knowledge of the contract
deliberately induced the ball-player to authorize defendant to use the players
photograph.57 Since New York law recognized a common law right of publicity,
which is a freely transferable property right, courts have sometimes held that
plaintiffs privacy interest was out-weighed by the publics interest in newsthe
balance may now swing in plaintiffs favor.58 However, it was a federal court
deciding New York law, the New York Court of Appeals, the highest court in the
state, holding that there is no common law right of publicity59 nor a common law
right of privacyappropriation tort.
After the Haelan Laboratories case, a great debate erupted between the right of
publicity and the medias right to report newsworthy events under the protection of
the First Amendment.60 The right of publicity, as applied, is fundamentally
constrained by the public and the constitutional interests in freedom of
expression,61 and the First Amendment should provide a defense against a right of
publicity claim unless someones name or likeness was used in a commercially
52
Uhlaender v. Henricksen, 316 F. Supp. 1277, 128283 (D. Minn. 1970).
53
See generally Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 867 (2d Cir. 1953);
see generally J. Gordon Hylton, Baseball Cards and the Birth of the Right of Publicity: The Curious Case
of Haelan Laboratories v. Topps Chewing Gum, 12 Marq. Sports L. Rev. 273 (2001) (discussing the
ramifications of Haelans decision in allowing the right of publicity to become a separate legal action apart
from the right of privacy).
54
See generally Hylton, supra note 53.
55
202 F.2d 866 (2d Cir. 1953).
56
Id. at 867.
57
Id.
58
Joseph Grodin, Note, The Right of Publicity: A Doctrinal Innovation, 62 Yale L.J. 1123, 112829
(1953).
59
See Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984) (Plaintiff, a professional model,
was unsuccessful his right of publicity claim against a New York Magazine that used his image, without
his consent, outside of the agreed article).
60
Georgescu, supra note 50, at 907; see Daniel Gervais & Martin L. Holmes, Fame, Property, and Identity:
The Scope and Purpose of the Right of Publicity, 25 Fordham Intell. Prop. Media & Ent. L.J. 181, 203
205 (2014) (discussing the rationales for and against the right of publicity).
61
See Eugene Volokh, Freedom of Speech and the Right of Publicity, 40 Hous. L. Rev. 903, 905 (citing
Restatement (Third) of Unfair Competition 47 cmt. c (1995)).
127
exploitative manner.62 In the first and only right of publicity case heard by the
Supreme Court, the Court concluded that although the state of Ohio may as a matter
of its own law privilege the press in the circumstances of this case, the First and
Fourteenth Amendments do not require it to do so.63 In Zacchini v. Scripps Howard
Broadcasting Inc.,64 the Court had the opportunity to decide if a performer in a
human cannonball act could bring an action against a television company to
recover damages for their recording of his act without his consent on the news.65
The Court saw that their action posed a substantial threat to the economic value of
the performance and that the right of publicity gave him personal control over
commercial display and exploitation of his personality and the exercise of his
talents.66 However, an interesting component of that case dealt with the Courts
language on the ability to prove damages. The Court said:
It is possible, of course, that respondents news broadcast

increased the value of petitioners performance by stimulating
the publics interest in seeing the act live. In these
circumstances, petitioner would not be able to prove damages
and thus would not recover. But petitioner has alleged that the
broadcast injured him to the extent of $25,000, and we think the
State should be allowed to authorize compensation of this injury
if proved.67
This language may be very persuasive for EA Sports with respect to the games
promotion of the National Football League and the popularity that is gained because
of the games virtual reality. The focus on proving a remedy was affirmed in
Newcombe v. Adolf Coors Co.68 This concept will be discussed further in Part V.
As technology continued to evolve in the twenty-first century, the court was
again challenged to expand the scope of the right of publicity in two landmark
cases: Comedy III Productions v. Gary Saderup, Inc.,69 and No Doubt v. Activision
62
Restatement (Third) of Unfair Competition 46 (1995).
63
Zacchini v. Scripps-Howard Broadcasting, Inc., 433 U.S. 562, 56566 (1977).
64
433 U.S. 562 (1977).
65
Id.
66
Id. at 570.
67
Id. at 583.
68
157 F.3d 686 (9th Cir. 1998) (citing Eastwood v. Superior Court of Los Angeles County, 198 Cal. Rptr.
342, 347 (Cal Ct. App. 1983) (To sustain a common law cause of action for commercial
misappropriation, a plaintiff must prove: (1) the defendants use of the plaintiffs identity; (2) the
appropriation of plaintiffs name or likeness to defendants advantage, commercially or otherwise; (3) lack
of consent; and (4) resulting injury.)).
69
21 P.3d 797 (Cal. 2001).
128
Publishing.70 In Comedy III Productions, the California Supreme Court was asked
to decide whether the challenged work or product contain[ed] significant
transformative elements [that did] not derive primarily from the celebritys fame.71
In deciding that the defendant violated Comedy III Productions right of publicity
associated with the Three Stooges, the court set forth the transformative test.72 A
right of publicity is when the work appropriates the very activity by which the
entertainer acquired his reputation in the first place and any artist depicting a
celebrity must contribute more than merely trivial variation, but something
recognizably his own, in order to qualify for legal protection.73 However, although
the transformative test slowly worked its way into the arsenal of many courts, there
are several observers who complain about the subjective nature of the test and
whether or not courts are best suited to handle this test.74 Does the piece of artwork
depicting the Three Stooges in charcoal shading truly diminish Comedy III
Productions ability to commercialize their asset? The California Supreme Court
decided that question, but it is possible that their understanding was flawed. Against
that question, the transformative test was further discussed in Winter v. DC
Comics,75 as the court found that the work was worthy of First Amendment
protection because of the added creative elements significantly transformed the
depiction of the celebrity in question.76 The final case outside of the sports video
game industry dealt with a music group that brought an action against a video game
manufacturer in California alleging multiple causes of action including a common
law right of publicity.77 The Plaintiff, No Doubt is a music group that allowed
defendant Activision Publishing, Inc., a video game manufacturer, to create
animated character representatives (avatars) of members likenesses for the
70
702 F. Supp. 2d 1139 (C.D. Cal. 2010).
71
Comedy III, 21 P.3d at 810 (evaluating a case where the defendant made t-shirts that depicted the three
stooges even though Comedy III Production held the rights to publicity).
72
Comedy III, 21 P.3d at 799.
73
Id. at 810.
74
See David Tan, What Do Judges Know About Contemporary Art?: Richard Prince and Reimagining the
Fair Use Test in Copyright Law, 15 Media & Art L. Rev. 381 (2011) (discussing the difficulty judges are
faced with when deciding what is worth protecting and how to balance fair use in copyright law against the
economic right associated with the right of publicity). See also Gareth S. Lacy, Standardizing Warhol:
Antitrust Liability for Denying the Authenticity of Artwork, 6 Wash. J. L. Tech. & Arts 185, 18687
(2011) (discussing the courts analysis in Comedy III related to the courts acceptance of the Andy Warhol
silkscreen prints on Coke bottles as an example of transformation in contemporary art).
75
121 Cal. Rptr. 2d. 431 (Cal. Ct. App. 2003).
76
For more information on artists freedom of expression, see generally ETW v. Jireh, 99 F. Supp. 2d 829
(N.D. Ohio, 2000) (protected an artists freedom of expression in the painting of Tiger Woods). See
generally Interactive Digital Software Assn v. St. Louis County, 329 F.3d 954 (8th Cir. 2003) (held that
there is narrative present in video games that should be entitled to First Amendment protection); see also
CBS Interactive Inc. v. NFLPA, 259 F.R.D. 398 (D. Minn. 2009) (package of player information
consisting of names, player profiles and up-to-date statistics, does not violate players publicity rights
when used in fantasy football games).
77
No Doubt v. Activision Publishing, 702 F. Supp. 2d 1139 (C.D. Cal. 2010).
129
limited purpose of allowing the characters to perform three of plaintiffs musical

works in the game Band Hero.78 The complaint alleged that the defendant breached
the contract by allowing these avatars to perform over sixty unapproved songs by
hiring actors to impersonate the band members.79 The video game included a
Character Manipulation Feature that allow[ed] game-players to manipulate each
characters likeness to engage in unapproved acts with other characters included in
the game.80 Ultimately, the court found that other creative electivesdo not
transform the avatars into anything other than exact depictions of No Doubts
members doing exactly what they do as celebrities.81
Although the latter half of the twentieth century and into the twenty-first
century found courts recognizing a right of publicity and a need to protect the
economic opportunities of public figures, the tests used remain controversial as
technology continues to evolve. Before discussing how some of these tests were
applied in the recent EA Sports cases regarding NCAA Football and Madden NFL, it
is imperative to analyze how these tests were created and their significance in
judicial history.
III. STATE RIGHT OF PUBLICITY STATUTES VS. COMMON LAW
As the right of publicity has evolved, it has been understood as commonly a

state law that protects individuals identities from exploitation without permission.82
Right of publicity lawsuits are routinely brought over books,83 films,84 songs,85 and
video games86 that mention someones name, likeness, or other attributes of identity.
The particulars of the law vary from state to state.87 The difficulty begins with the
fact that there is no uniform standard for the right of publicity in the United States.88
78
No Doubt, 702 F. Supp. 2d at 1140.
79
Id.
80
Id. at 114041. The plaintiffs complained that the contract only allowed for the defendants to utilize the
band members as a collective group, and not as solo artists or in any other manipulated way.
81
Id.
82
See generally Rothman, supra note 23.
83
See, e.g., Bates v. Cast, 316 P.3d 246 (Okla. Ct. Civ. App. 2013).
84
See, e.g., Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., 953 F. Supp. 2d 701 (N.D. Miss.
2013); Sarver v. Hurt Locker LLC, 2011 WL 11574477 (C.D. Cal. 2011); Tyne v. Time Warner Entmt
Co., L.P., 901 So. 2d 802 (Fla. 2005) (regarding compensation for the families of the real men depicted in
the film, The Perfect Storm).
85
See, e.g., Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003).
86
See, e.g., Davis v. Elec. Arts Inc., 775 F.3d 1172 (9th Cir. 2015); In re NCAA, 724 F.3d 1268 (9th Cir.
2013); see Hart v. Elec. Arts Inc., 717 F.3d 141 (3d Cir. 2013).
87
Vincent M. De Grandpre, Understanding the Market for Celebrity: An Economic Analysis of The
Right of Publicity, Simpson Thacher & Bartlett LLP (Sept. 11 2001),
http://www.simpsonthacher.com/content/publications/pub285.pdf.
88
Id.
130
A. Indiana
Prior to 1994, Indiana relied on Warren and Brandeis view that the
unauthorized use of photographs of a person for commercial purposes was an
invasion of what they deemed a right of privacy.89 However, that all changed when
in 1994 Indiana decided to implement what is considered to be one of the most
sweeping state statutes governing privacy rights.90 The reason Indianas statute is
considered as one of the most sweeping statutes is because Indiana defines ones
right of publicity as a continuing property interest in,91 and ones personality as
encompassing, an individuals name, image, likeness, signature, gesture, distinctive
appearance, and mannerisms.92 The rights under the Indiana statute protect the
property interest in a personalitys name, voice, signature, etc.93 However, Indiana
courts do not consider a right of publicity separate from the appropriation tort.94 On
the other hand, Indiana has long recognized a common law tort of invasion that
includes the tort of appropriation of name or likeness.95
By enumerating an expansive scope of protection, Indiana was able to give
protection to many of the areas that courts as well as other states96 had slowly been
able to recognize under common law, such as Vanna Whites gestures. In addition,
Indiana took a step further in choosing to define a name for the right of publicity
89
Warren & Brandeis, supra note 26, at 195.
90
See Ind. Code. Ann. 32-36-1-132-36-1-20 (West 2016) (Indiana recognizes a statutory right of
publicity as a property interest in a personalitys (1) name; (2) voice; (3) signature; (4) photographs; (5)
image; (6) likeness; (7) distinctive appearance; (8) gesture; or (9) mannerisms. The rights recognized
under the statute are divisible, feely transferable and descendible). See also Donald E. Biederman et. al.,
L. & Bus. Ent. Indus. 231 (5th ed. 2007). See also De Grandpre, supra note 87 (for those who seek to use
celebrity identity for commercial purposes, the law of publicity remains as complex and confused as
ever).
91
Ind. Code. Ann. 32-36-1-7 (West 2016); see Adkins, supra note 31.
92
Ind. Code. Ann. 32-36-1-6 (West 2016).
93
Id.
94
See generally Jennifer Rothman, Rothmans Roadmap to the Right of Publicity: Indiana,
http://www.rightofpublicityroadmap.com/law/indiana (last visited, Apr. 20, 2016).
95
Felsher v. Univ of Evansville, 755 N.E.2d 589, 593 (Ind. 2001) (affirming the injunction against a
former employee of the university from engaging in certain Internet activity including the creation and use
of e-mail address and websites having an appearance of association with the University); Contl Optical
Co. v. Reed, 86 N.E.2d 306, 308, (Ind. Ct. App. 1949) (finding protection for the unwarranted
appropriation of ones personality, or the wrongful intrusion into ones private activities).
96
White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992); see also Midler v. Ford Motor Co.,
849 F.2d 460 (9th Cir. 1988) (illustrating, at common law, Midlers right to her voice against exploitation
though a sound-a-like); Carson v. Heres Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983)
(preventing the defendant, who intentionally used the name Heres Johnny for his portable toilets
because of Johnny Carsons identity to the phrase behind a common like publicity right claim).
131
as an actual or assumed namethat is intended to identify the person.97 Although

the statute protects many aspects of a persons personality, Indiana has also carved
out exceptions that exempt the use of an individuals personality in connection
witha topic of general or public interest[and m]aterial that has political or
newsworthy value.98 A final noteworthy piece of Indianas statute is that it remains
untested as no case has yet to decide the precise issue relevant to the right of
publicity in the context of this paper.99 In Phillips v. Scalf,100 the Indiana Court of
Appeals denied a change of venue when an heir of the famous gangster, John
Dillinger, claimed a restaurant violated Dillinger post-mortem right of publicity
even though the right of publicity existed at the time of death.101 Although Indiana
has established a right for Indiana citizens to protect their name, image and likeness,
this statute has not been fully tested. Part V will analyze the Madden NFL lawsuit
under the Indiana statute.
B. New York
The 1953 Second Circuit Court of Appeals decision in Haelen Laboratories,

Inc. v. Topps Chewing Gum, Inc. case was the first to recognize a celebritys right to
control the commercial exploitation of his or her identity and in doing so, the court
separated the right of publicity from the right of privacy.102 Following this decision,
New York recognized a right to prevent the appropriation of ones name or likeness,
however citizens did not possess post-mortem rights.103 New York provides civil
and criminal actions to prevent the unauthorized use within the state of the name,
portrait or picture of any living person [for] advertising purposes, or for the purpose
of trade.104 Although New York has protected what has been claimed to be a right of
publicity though a statute, the New York Court of Appeals, the highest court in the
97
Ind. Code. Ann. 32-36-1-3 (West 2016); but cf. DeClemente v. Columbia Pictures Indus., 860 F. Supp.
30 (E.D.N.Y. 1994) (dismissing right of publicity claim against the use of his nickname Karate Kid as
the title of the movie); see also Gardella v. Log Cabin Prod. Co., 89 F.2d 891 (2d Cir. 1937) (if the state
name has come to be closely and widely identified with the person who bears it, the need for protection
against unauthorized advertising will be as urgent as in the case of a private name).
98
Ind. Code. Ann. 32-36-1-1(c)(3) (West 2016); see Ind. Code Ann. 32-36-1-1(c)(1)(B) (West 2016).
99
See J. Thomas McCarthy, The Rights of Publicity and Privacy 6:3 (2d ed. 2014).
100
778 N.E.2d 480 (Ind. Ct. App. 2002).
101
Id.
102
202 F.2d 866 (2d Cir. 1953) (granting a baseball player the right to enjoin the unauthorized use of his
photograph and name on baseball cards distributed with the defendants bubble gum); see generally
Halpern, supra note 49.
103
N.Y. Civ. Rights 50 (McKinney 2016); N.Y. Civ. Rights 51 (McKinney 2016); see generally
Stephano v. News Group Publn, 474 N.E.2d 580 (N.Y. 1984).
104
See Stephano, 474 N.E. at 583; see generally Jennifer Rothman, Rothmans Roadmap to the Right of
Publicity: New York, http://www.rightofpublicityroadmap.com/law/new-york (last visited, Apr. 20, 2016).
132
state, expressly held that there is no common law right of publicity105 nor a common
law right of privacyappropriation tort.106 New Yorks failure to recognize a claim
for the appropriation of ones identity has caused a great deal of controversy
amongst citizens of the state as well as with states with different viewpoints
Indiana.107 This forced New York plaintiffs to treat causes of action for privacy and
publicity together under the general right of privacy.108
New Yorks inability to recognize a right outside of the statute remains relevant
as these cases have addressed the balancing tests between a First Amendment
defense on what is deemed newsworthy or information in the public sphere against a
mans right to commercialize his name, image or likeness. With the National
Football League Players Association located in New York, it will remain interesting
where future lawsuits related to the gaming industry take place under New Yorks
differing viewpoint on how the right of publicity plays a role in society. Would a
case reflecting similar facts have a better chance brought in Indiana or even
California that will be discussed next in this paper? It appears that New York will
not extend protection beyond ones name, portrait, picture, or voice, meaning an
individual may not protect his or her likeness.109 As a result, the Southern District
of New York refused to extend protection to The Naked Cowboy110 when Mars,
Inc. used his likeness in a 2007 M&M advertisement without his consent.111 Many
have argued that the Naked Cowboy should have had rights even though he was
considered to be in the public sphere because his image was unjustly enriching those
individuals who exploited his image and likeness.112 This limitation makes New
Yorks statute one of the countrys least protective of individual rights.
105
See Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984).
106
Messenger ex rel. Messenger v. Gruner & Jahr Printing and Pub., 727 N.E.2d 549 (N.Y. 2000)
(rejecting the notion of the right of privacy in support of the newsworthiness exception); Roberson v.
Rochester Folding Co., 64 N.E. 442 (N.Y. 1902) (the court held there was no cause of action for invasion
of privacy nor a precedent that came from any legal commentary prior to 1890).
107
See generally Allen v. Natl Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985) (finding that, under the
right of publicity, Woody Allen could not protect the appropriation of his likeness used in connection with
National Videos advertising and questioning whether the New York statute allowed protection against
look-a-likes).
108
Id. at 621.
109
Adkins, supra note 31, at 507.
110
Robert Burck is a street entertainer who performs in Times Square wearing only a cowboy hat, boots
and underpants.
111
Burck v. Mars, Inc., 571 F. Supp. 2d 446, 44950 (S.D.N.Y. 2008) (the advertisement featured a blue
M&M with a cowboy hat and underpants giving the illusion that the M&M was almost naked, just like the
Naked Cowboy in Times Square).
112
See Halpern, supra note 49.
133
C. California
In contrast to New York, California has a statutory right of publicity for both
the living and the dead, as well as common law actions for both the right of
publicity and the appropriation branch of the right of privacy.113 In 1971, California
adopted its first statute addressing the right to recover damages for the
unauthorized commercial use of [the persons] name, photograph, or likeness
however; this particular statute did not expressly recognize such rights as rights of
publicity.114 However, as a result of the courts rejection of a descendible
publicity right in Lugosi v. Universal Pictures,115 the California legislature amended
California Code 3344 to clarify and expand the states recognition of a protected
right of publicity and to protect the use of an individuals name, voice, signature,
photograph, or likeness, in any manner.116 This expansion of the right of publicity
into these various areas of an individuals personality is much more like Indiana and
much more expansive than the New York statute.
In addition, what furthers the confusion and dire need for a uniform standard
under the right of publicity is the fact that unlike Indiana and New York, California
recognizes a common law right of publicity117 and a common law right of
privacy.118 For example, the California Court of Appeals stated that the common
law right of publicity can be found by alleging: (1) the defendants use of the
plaintiffs identity; (2) the appropriation of plaintiffs name or likeness to
defendants advantage, commercially or otherwise; (3) lack of consent; and (4)
resulting injury.119 California courts have taken an expansive view of likeness
under 3344 by furthering the protection against sound-a-likes and against
manufacturers that subtly evoke the identities of prominent individuals.120 This
protection helps preserve the economic value of ones personality and hinders the
113
See generally Jennifer Rothman, Rothmans Roadmap to the Right of Publicity: California,
http://www.rightofpublicityroadmap.com/law/california (last visited, Apr. 20, 2016).
114
See Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979); see also Prosser, supra note 40, at 393
(focusing on his Item 4 classification of privacy has been complemented legislatively by California Civil
Code section 3344 adopted in 1971).
115
Lugosi, 603 P.2d at 44546.
116
See Cal. Civ. Code 3344(a)(g) (West 2016).
117
See Comedy III Prods v. Saderup, 21 P.3d 797 (Cal. 2001); see also Eastwood v. Superior Court, 198
Cal. Rptr. 342 (Cal. Ct. App. 1983). See also White v. Samsung, 971 F.2d 1395 (9th Cir. 1992) (finding a
robot with a blonde wig who was posing like Vanna White in front of a Wheel of Fortune board was an
appropriation of her right of publicity).
118
See Dora v. Frontline Video, Inc., 18 Cal. Rptr. 2d 790 (Cal. Ct. App. 1993); see also Melvin v. Reid,
112 Cal. App. 285 (Cal. Ct. App. 1931).
119
Eastwood v. Superior Court, 198 Cal. Rptr. 342, 347 (Cal. Ct. App. 1983).
120
Id.; see also Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).
134
ability of manufacturers from unjustly enriching themselves at the expense of public

figures.
As illustrated above, California, Indiana, and New York all believe the right of
publicity is a right that is worthy of protection within their state. However, it is very
alarming that each of these states have very different interpretations and viewpoints
as to how a state should protect that right and the relationship between the statutory
and common law rights of publicity and privacy. With these differing viewpoints
playing a major role in the evolving gaming industry, it becomes a question of who
sues first and where a party chooses to file a lawsuit. This slippery slope needs to
put pressure on the Supreme Court into seeking equilibrium121 for this current area
of the law by granting certiorari for a gaming industry case to settle once and for all
how the right of publicity should be viewed in the twenty-first century.
IV. THE CONTROVERSY BEHIND THE TEST
As Part III discussed, there is great uncertainly amongst litigants in the fifty
states as to what rights they have over their name, likeness and image. However,
it is not just the states that have left this question unsolved. Part III of this paper
analyzes both the history and effectiveness of each of the current tests the courts
have tried to use in right of publicity cases including the transformative test, the
relatedness test, and the predominant purpose test. Amongst all of these tests, the
courts have yet to solidify the right test for the right of publicity and have
certainly not indicated which test is most applicable to the gaming industry. It is
time for the Supreme Court to stabilize this area of the law and hear a case that will
update the Courts 1977 holding in Zacchini.122
A. Transformative Test
The most common test that courts have currently relied upon, including the
Supreme Court in Zacchini, is the transformative test. The transformative test has
been split into the transformative use test123 and the transformative work test.124
121
See generally Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium Approach, 110 Harv. L.
Rev. 1055 (1997) (advocating for the Courts role in establishing an equilibrium in unstable legal
industries and for using stare decisis in stable industries).
122
Zacchini v. Scripps-Howard Broadcasting, Inc., 433 U.S. 562 (1977).
123
See generally Reply to Brief in Opposition, Electronic Arts, Inc. v. Davis, No. 15-424 (Dec. 21, 2015),
2015 WL 9302640, at *6 (The Third and Ninth Circuits have focused on protecting only those uses of a
persons identity to transform the utilized aspect of the persons identity) [hereinafter Reply to Brief in
Opposition].
135
Applications of this test in First Amendment defenses of right of publicity claims

have fractured a delicate balance between expression and exploitation.125 The
transformative test states that a defendants use of a plaintiffs likeness does not
qualify for First Amendment protection as a matter of law if it literally recreate[s]
[the plaintiff] in the very setting in which he has achieved renown.126 This defense
seeks a balancing test between having transformative enough elements to not only
be worthy of First Amendment protection, but to also ensure that the product is less
likely to interfere with the economic interest protected by the right of publicity.127
Specifically, the transformative use test used by the Third and Ninth Circuits
protect only those uses that transformed the persons identity.128 However, when a
celebritys likeness is used in the same basic setting in which the celebrity usually
appearsthat use is not protected by the First Amendment.129 When a game
realistically portray[s] an athlete, the Court has found that act as constitutionality
unprotected under the transformative use test.130 The California Supreme Court has
focused more on the transformation of something more than a mere celebrity
likeness or imitation.131 A t-shirt containing just a celebritys picture would be
constitutionally unprotected, but works that add something beyond the celebritys
identity would be protected.132 Comedy III seems to support this test by asking
whether the speaker has added material beyond just the likeness of the
celebrity.133 Under this approach, biographieswhich seek to portray a person
do not lose First Amendment protection merely because they intentionally avoid
distorting a persons name, likeness, or biographical details.134
Although this test has been heavily relied upon by the Third, Ninth, Sixth
Circuits as well as the California Supreme Court, there remains serious issues with
this test. If the true nature of the right of publicity is to protect a man or womans
personality,135 how can courts attempt to protect that image or likeness if it has been
transformed? The basic premise of the transformative test would infer that the
124
Reply to Brief in Opposition, Electronic Arts, Inc. v. Davis, No. 15-424 (Dec. 21, 2015), 2015 WL
9302640, at *5 (Other courts, including the California Supreme Court and the Sixth Circuit see this test as
involving transformation involving the name or likeness combined with other materials).
125
Palachuk, supra note 21, at 235.
126
Id. at 263 (citing Comedy III Productions v. Saderup, 21 P.3d 797, 799 (Cal. 2001)).
127
Comedy III, 21 P.3d at 808.
128
See Davis v. Elec. Arts, Inc., 775 F.3d 1172, 117778 (9th Cir. 2013); see also In re NCAA, 724 F.3d
1268, 127679 (9th Cir. 2013).
129
Hilton v. Hallmark Cards, 599 F.3d 894, 91011 (9th Cir. 2009).
130
See In re NCAA., 724 F.3d at 1276; see Davis, 775 F.3d at 1178; see Hart v. Elec. Arts, Inc., 808 F.
Supp. 2d 757, 762 (D.N.J. 2011), revd, 717 F.3d 141, 168170 (3d. Cir. 2013).
131
See Comedy III, 21 P.3d at 799 (emphasis added).
132
Id. at 809.
133
Id.
134
See Reply to Brief in Opposition, supra note 123, at *56.
135
For example, an individuals name, like, image, signature, voice, gestures, etc.
136
identity of the individual is no longer the individual. How is the avatar in Madden
NFL or NCAA Football like its counterpart? How is that their likeness? Part V of
this paper will illustrate ways it is not reflective of their likeness and economic
value. On the other hand, this test is troubling because of the subjectiveness and
qualitative judgments that are required to determine what is far enough away from
a persons identity or likeness. These determinations are not easily made. Other
troubling factors include: (1) subjective judgment regarding artistic expression, (2)
unpredictability due to those subjective judgments, (3)subjectivity of the analysis,
and (4) substantial favoritism for individual privacy rights over the promotion of the
useful arts and the freedom of expression, both of which are Constitutional
guarantees.136 As this paper will explain in Part V, the Constitutional guarantees of
freedom of expression were stripped away from EA Arts by forcing EA to refrain
from publishing new updates of NCAA Football in lieu of privacy protections
because the courts subjective belief of similarity.
B. The Relatedness Test
A second test was founded in Rogers v. Grimaldi,137 in a landmark Second

Circuit case that dealt with a film that challenged the balance between First
Amendment protections and the right of publicity against misappropriation and
exploitation.138 Ginger Rogers brought a state right of publicity claim and a federal
Lanham Act claim against the makers of the film Ginger and Fred alleging that
although the film was not about Ginger Rogers and Fred Astaire, the fictional Italian
duo that imitated them became known in Italy as Ginger and Fred.139 The court
concluded, the [Lanham] Act should be construed to apply to artistic works only
where the public interest in avoiding consumer confusion outweigh the public
interest in free expression.140 Furthermore, movies, plays, books and songs are
indisputably works of artistic expression and deserve protection, but that the
purchase of a book, like the purchases of a can of peas, has the right not to be
mislead as to the source of the product.141 Under this speech-protective test, as
adopted by the Second, Fifth,142 and Sixth Circuits,143 an expressive work enjoys
First Amendment protection unless the underlying work is: (1) wholly unrelated
136
See Palachuk, supra note 21, at 264.
137
875 F.2d 994 (2d Cir. 1989).
138
Id. at 996.
139
Id. at 99697.
140
Id. at 999 (emphasis added).
141
Id. at 997.
142
See, e.g., Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994).
143
See, e.g., Parks v. LaFace Records, Inc., 329 F.3d 437 (6th Cir. 2003).
137
to the individual; or (2) a disguised advertisement for the sale of goods or services
or a collateral commercial product.144 Although these several courts have used this
test as a way to protect citizens right of publicity, the Rogers discussion of the right
of publicity expressly stressed the need to limit the right to accommodate First
Amendment concerns and a concern for free expression.145 This tests
applicability to the video game cases will be discussed further in Part V.
C. The Predominant Purpose Test
Another test that conflicts with how other courts have evaluated the right of
publicity lies in the Missouri Supreme Courts focus on whether a work
predominantly exploits the commercial value of an individuals identity as
opposed to having the predominant purpose[of] mak[ing] an expressing
commentabout a celebrity.146 In Doe, a professional hockey player, Anthony
Twist, sued a comic book author for naming a character, Tony Twistelli, even
though the character did not resemble or act like Twist.147 The Missouri Supreme
Court found that the authors work did infringe on Twists right of publicity because
it was predominantly a plot to sell comic books and related products rather than an
artistic or literary expression.148 The argument in favor of the right of publicity
being based on an unjust enrichment claim would push against the predominate
feature of this test. The unjust enrichment argument seeks to protect the right of
publicity because no social purpose is served by having the defendant get some
free aspect of the plaintiff that would have market value and for which he would
normally pay.149 This concept will be elaborated on in Part V.
The predominant purpose test challenges many current tests used by courts.
First, the rule of law that was created in Doe v. TCI150 directly conflicts with the
144
Rogers, 875 F.2d at 100405; see also Restatement (Third) Unfair Comp. 47 cmt. c (1995)
(concluding that creative works should be exempted from liability unless they are not related to the
identified person).
145
Rogers, 875 F.2d at 1004.
146
Doe v. TCI, 110 S.W.3d 363, 374 (Mo. 2003) (quoting Mark S. Lee, Agents of Chaos: Judicial
Confusion in Defining the Right of PublicityFree Speech Interface, 23 Loy. La. Ent. L. Rev. 471, 500
(2003)); see also Neil G. Hood, Note, The First Amendment and the New Media: Video Games as
Protected Speech and the Implications on the Right of Publicity, 52 B.C. L. Rev. 617, 64142 (2011).
147
Doe, 110 S.W.3d at 366.
148
Id. at 374. A jury later awarded Twist $15 million. Assoc. Press, Jury Award Pushes Comic Book
Company into Bankruptcy Court, USA Today (Dec. 18, 2004),
http://usatoday30.usatoday.com/sports/hockey/nhl/2004-12-18-mcfarlane-twist_x.htm.
149
Richard T. Karcher, The Use of Players Identities in Fantasy Sports Leagues: Developing Workable
Standards for Right of Publicity Claims, 111 Penn St. L. Rev. 557, 559 (2007) (citing Harry Kalven,
Privacy in Tort LawWere Warren and Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966)).
150
110 S.W.3d 363 (Mo. 2003).
138
California Supreme Courts holding in Winter v. D.C. Comics.151 In Winter, the

California Supreme Court found that a comic book author who named two
characters Johnny and Edgar Autumn after the musician brothers Johnny and Edgar
Winter were protected by the First Amendment against the right of publicity
claim.152 What made this case particularly interesting is the fact that the characters
in Winter, like the musicians, had long white hair and albino features.153 However,
in Doe, the Missouri Supreme Court refused to allow the comic book author to use
the First Amendment defense even though his character looked nothing like the
plaintiff. Second, unlike any other tests that courts have used, the predominant
purpose test requires juries to consider the defendants purpose. Can a jury analyze
whether or not an author was predominantly motivated by commercial
exploitations over the artistic or expressive goal of creating a product? Given the
responsibilities the judicial system currently gives jury members, there seems little
reason why juries, who are often the consumers of the issues at hand, should not
have the ability to interpret the commercial exploitation argued over in litigation.
Much like the role that states have played in adding to the confusion
surrounding the right of publicity, the courts have escalated the confusion by finding
very different ways to protect the right of publicity under different tests.
V: THE FUTURE OF VIDEO GAMES
As states and courts alike continue to debate how to balance the right of
publicity with the First Amendments support for creative works, the evolution of
the video game industry has further illustrated a dire need for a position by the
Supreme Court.154 Without a ruling on the right of publicity by the Supreme Court
since 1977, the lower courts have been left to fend for themselves in hastily trying
to consistently solve the friction between the First Amendment and the right of
publicity.155 Furthermore, this issue has been pressing since 2010 when EA Sports
came under fire by student-athletes who believed their right of publicity was being
violated. However, given the fact that several works of legal commentary have
151
69 P.3d 473 (Cal. 2003).
152
Id. at 476.
153
Id.
154
See Rothman, supra note 22.
155
Michael Schoeneberger, Note, Unnecessary Roughness: Reconciling Hart and Keller with a Fair Use
Standard Benefitting the Right of Publicity, 45 Conn. L. Rev. 1875, 189293 (2013) (discussing
Zacchinis failure to provide a framework and test for how lower courts should evaluate the right of
publicity within the parameters of the artistic expression of the First Amendment).
139
focused on this issue within college athletics, this paper will primarily focus on the
Madden NFL case.156
Although EA Sports recently stopped producing the college football video game
NCAA Football,157 EA Sports has not escaped litigation at the professional level.158
In Davis v. Electronic Arts, Inc., a class of retired NFL players sued Electronic Arts
(EA), the makers of the Madden NFL video game159 for using their likenesses
without their consent from 2001-2009.160 The game features both current players
and historic retired players.161 Some of the plaintiffs include Michael E. Davis,162
Vince Ferragamo,163 and Billy Joe Dupree.164 While athletes success in these
actions have been mixed,165 the Ninth Circuit in Davis was tasked with the decision
over whether or not the case should be dismissed on the grounds articulated by EA
that the former players likenesses should have been considered incidental and
protected by the First Amendment.166 Those players did not appear under their own
156
For more information on the right of publicity claim against EA Sports with respect to NCAA Football
and a college athletes right to publicity see generally Hart v. Elec. Arts, Inc. 717 F.3d 141 (3d Cir. 2013)
(discussing the balancing inquiry of First Amendment against competing interests); see generally In re
NCAA, 724 F.3d 1268 (9th Cir. 2013) (applying transformative use test); see generally Schoeneberger,
supra note 155; see generally Joseph Gutmann, Note, Its in the Game: Redefining the Transformative Use
Test for the Video Game Arena, 31 Cardozo Arts & Ent. L.J. 215 (2012) (noting lack of definition for
predominant); see generally Kristine Mueller, Note, No Control Over Their Rights of Publicity: College
Athletes Left Sitting the Bench, 2 DePaul J. Sports L & Contemp. Probs. 70 (2004).
157
Nick Schwartz, EA Sports Says Theres No New NCAA Football Game Coming After Teasing Fans,
USA Today Sports (Jan. 11 2016), http://ftw.usatoday.com/2016/01/ea-sports-says-theres-no-new-ncaa-
football-game-coming-after-teasing-fans.
158
Associated Press, Lawsuits vs. EA Sports Can Advance, ESPN.com (Jan. 6, 2015),
http://espn.go.com/nfl/story/_/id/12128748/nfl-players-lawsuit-vs-video-game-maker-electronic-arts-
allowed-advance.
159
The Madden NFL series commenced in 1988-89 as a video game for computers that sought to create a
digital version of the National Football League by attempting to replicate each players real-life abilities
for users to control. History of John Madden Football, EASport.com, https://www.easports.com/madden-
nfl/museum-exhibit (last visited Dec. 11, 2016).
160
775 F.3d 1172 (9th Cir. 2013).
161
Id.
162
Tony Davis: Career Stats, NFL.com, http://www.nfl.com/player/tonydavis/2512597/profile (last visited
Apr. 30, 2016) (Davis completed six seasons in the NFL playing for the Cincinnati Bengals and Tampa
Bay Buccaneers).
163
Vince Ferragamo, Career Stats, NFL.com,
http://www.nfl.com/player/vinceferragamo/2513967/careerstats (last visited Apr. 30, 2016).
(Ferragamo completed nine seasons in the NFL playing for the L.A. Rams, Buffalo Bills and Green
Bay Packers).
164
Billy Joe DuPree: Career Stats, NFL.com,
http://www.nfl.com/player/billyjoedupree/2513342/careerstats (last visited Apr. 30, 2016) (Billy Joe
DuPree played eleven NFL seasons with the Dallas Cowboys).
165
Compare In re NCAA, 724 F.3d 1268 (9th Cir. 2013) (holding plaintiffs use of the athletes likeness in
a video game violated the athletes right of publicity) with Brown v. Entertainment Merchants Assn, 131
S. Ct. 2729 (2011) (video games are protected speech under the First Amendment striking down a 2005
California law banning the sale of certain violent video games to children, without parental supervision)
and with Brown v. Elec. Arts, Inc., No. 2:09-CV-01598-FMC, 2009 WL 8763151 (C.D. Cal. Sept. 23,
2009), affd, 724 F.3d 1235 (9th Cir. 2013) (holding plaintiffs use of the athletes likeness in a video
game was protected by the First Amendment).
166
See Davis v. Electronic Arts, Inc., 775 F.3d 1172 (9th Cir. 2013).
140
name or uniform number, but all other identifying traits such as height, weight,
ethnicity, and position were consistent.167 The players also were rated to perform
like their real-word counterparts and a unique feature within the game allowed
gamers to edit rosters and put in the players real names and numbers. Unlike the
current versions of the video game where the former players who appear in the
Ultimate Team168 mode are paid for their appearance, Electronic Arts did not pay
to license the players likenesses on the historic teams from 2001-2009.169
In an alarming decision for EA, the Ninth Circuit rejected that claim holding,
EAs use of the former players likenesses is not incidental because it is central to
EAs main commercial purpose to create a realistic virtual simulation of football
games involving current and former NFL teams.170 The court articulated a number
of factors that were relevant, including:
(1) whether the use has a unique quality or value that would
result in commercial profit to defendant; (2) whether the use
contributes something of significance; (3) the relationship
between the reference to plaintiff and the purpose and subject of
the work; and (4) the duration, prominence or repetition of the
name or likeness relative to the rest of the publication.171
The court stated that factor one and two weigh against incidental use because
the players likenesses have unique value that adds to the commercial value of
Madden NFL.172 Factors three and four weigh against incidental value because the
former players likeness is shown and featured in a way that is substantially related
to the primary purpose of the gameto create an accurate virtual simulation of an
NFL game.173 With all of these factors on the line and the opportunity to once and
for all stabilize the right of publicity, the Supreme Court failed to see the dire need
at stake by denying certiorari.174
In attempting to analyze why the Supreme Court denied certiorari, this paper
will analyze four propositions: (1) the Courts unwillingness to grant certiorari to
any cases after Justice Scalias death; (2) an attempt to avoid being forced to hear
other pending cases; (3) the sympathetic nature of exploited athletes in these types
167
Davis v. Electronic Arts, Inc., 775 F.3d 1172 (9th Cir. 2013).
168
See Davis, 775 F.3d at 1175; see also Ultimate Legends in MUT, EASports,
https://www.easports.com/madden-nfl/news/2014/mut-legends (last visited Mar. 5, 2016).
169
Id.
170
Id. at 1175.
171
See id.
172
See id.
173
See id.
174
Rothman, supra note 22.
141
of cases; and finally (4) the Court may be afraid to face the corrupting influence of
precedent. First, with respect to the passing of Justice Scalia, the Court may
arguably tie on a majority of cases, and it may have been the Courts decision to
deny certiorari for the sake of efficiency until Justice Scalias successor is
confirmed.175 Second, it has been argued that the Court may have chosen to dodge a
case on whether federal courts had jurisdiction to hear anti-SLAPP176 challenges.177
Because the Court denied certiorari in Mebo International,178 Professor Rothman
believes it is possible that the Court denied certiorari in Davis to avoid needing to
weigh in on the anti-SLAPP issue.179 Third, since the Keller and Hart cases, all of
the courts posed with this First Amendment issue in the context of similar facts
videogames with playerscame out the same way and have viewed the videogame
manufacturers as unjustly enriching themselves. EA was making millions of dollars
and some of the players (all of the student-athletes, and some retired NFL players)
were receiving nothing in return despite the perception that these players identities
were generating great value. As EA Sports became unjustly enriched, the players
were being commercially exploited for the benefit of National Football League fans.
On the other hand, if the economic value of the football and basketball players were
appropriatedit was certainly not the players entire economic value.180 Therefore,
the balancing test should certainly weigh how players commonly assert their
publicity rights against the backdrop of the courts protection of artistic expression.
Even against this history, the Ninth Circuit saw a need for this to stop in the midst
of an array of cases that tried to carve out an exception for creative design and the
right of expression.
Furthermore, if a court views athletes as sympathetic plaintiffs, there is no way
to square these videogame cases with courts holdings in numerous cases regarding
film and documentaries. For example, in Sarver v. Chartier,181 the Ninth Circuit
upheld a First Amendment defense in the context of the alleged use of the plaintiffs
175
Burt M. Rublin, Supreme Court Denies Certiorari in Closely Watched Consumer Class Action Case,
Ballard Spahr (Mar. 2 2016), http://www.ballardspahr.com/alertspublications/legalalerts/2016-03-02-
supreme-court-denies-certiorari-in-closely-watched-consumer-class.aspx.
176
SLAPP stands for Strategic Lawsuit Against Pubic Participation and the California anti-SLAPP
statute was brought to encourage participation in matters of public significance, and that this participation
should not be chilled through abuse of the judicial process. Kathryn W. Tate, Californias Anti-Slapp
Legislation: A Summary of and Commentary on it Operation and Scope, 33 Loy. L.A. L. Rev. 801, 806
(2000) (citing Cal. Civ. Roc. Code 435.16(a) (1994)).
177
See generally Mebo Intl, Inc. v. Yamanaka, 607 Fed. Appx 768 (9th Cir. 2015), cert. denied, 136 S.
Ct. 1449 (2016).; See generally Rothman, supra note 22.
178
Mebo Intl, 607 F. App'x 768 (9th Cir. 2015), cert. denied, 136 S. Ct. 1449 (2016).
179
Id.
180
See generally Jennifer Rothman, Ninth Circuit Tosses Hurt Locker Case, Rothmans Roadmap to the
Right of Publicity (Feb. 17, 2016), http://www.rightofpublicityroadmap.com/news-commentary/ninth-
circuit-tosses-hurt-locker-case.
181
813 F.3d 891 (9th Cir. 2013).
142
identity in the Academy-Award winning film, The Hurt Locker.182 The Ninth Circuit
concluded that since the plaintiff did not actively commercialize his identity, there
was no economic value to be protected by the right of publicity.183 It is arguable as
to whether or not average professional football players (excluding the star players
on a team) believe they are actively commercializing their identities. Furthermore,
given the computer animations of the avatars in Madden NFLsome whose names
are not even attached to the avatarit is hard to believe that the courts should view
these players as losing their right to publicity at the expense of the creative
expression of the videogame manufacturer. Storytellers and artists can take the raw
materials of lifeincluding the stories of real individuals, ordinary or
extraordinaryand transform them into art.184
A fourth reason that might explain the Courts failure to see the dire need to set
a uniform standard in right of publicity cases focused on the videogame industry
may be explained by the Courts fear in upsetting entrenched precedent. Those
justices choosing to blindly follow precedent at the order of stare decisis and
customary practices are toeing a very dangerous line. Custom has been used to
mean many different things, from regularly occurring industry practices, to social
norms, to ongoing practices that have existed from time immemorial.185 However,
what happens when that custom or deference to the former Court entrenching a rule
is wrong or unworkable? Courts and scholars alike have shown that when a
doctrine of precedent is unworkable,186 a court has the ability to alter that precedent
or overrule it.187 However, although courts state they have that power, many judges
have fallen into the trap of not upsetting the legal system through reversing
precedent. Judges are sticking with the status quo in fear of upsetting the way things
are. For example, in Burnet v. Coronado Oil & Gas Co.,188 Justice Brandeis stated
in a dissenting opinion that in most cases it is more important that the applicable
182
Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2013); see Rothman, supra note 22.
183
Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2013).
184
Id. Videogames are notably absent from the list of protected uses. It was argued that the list left off TV
shows and songs as well implying that it was never meant to be exhaustive, but it posed an interesting
question for the courts as to the role of videogames.
185
Jennifer E. Rothman, The Questionable Use of Custom in Intellectual Property, 93 Va. L. Rev. 1899,
1900 n.1 (2007) (citing e.g., Lisa Bernstein, The Questionable Empirical Basis of Article 2s Incorporation
Strategy: A Preliminary Study, 66 U. Chi. L. Rev. 710, 712 (1999) (defining custom as an unwritten
practice that would be considered a usage of trade under the [Uniform Commercial] Code.); Richard A.
Epstein, International News Service v. Associated Press: Custom and Law as Sources of Property Rules in
News, 78 Va. L. Rev. 85, 86 (1992) (defining custom in unfair competition context as what the
community has customarily regarded as binding social rules.); Eric A. Posner, Law, Economics and
Inefficient Norms, 144 U. Pa. L. Rev. 1697, 1699 (1996) (defining a norm as a non-legal rule developed
and enforced by a community rather than a state)).
186
E.g., segregation in schools; see generally Brown v. Board of Education, 74 S. Ct. 686 (1954).
187
Harris v. Quinn, 134 S. Ct. 2618 (2014); Amy Coney Barrett, Statutory Stare Decisis in the Court of
Appeals, 73 Geo. Wash. L. Rev. 317 (2004).
188
285 U.S. 393, 406 (1932).
143
rule of law be settled than that is be settled right.189 Stare decisis can have a
corrupting influence on courts.190 Who gets to decide to entrench a rule of law into
the very backbone of the Court? Heres [the] problem: Why last years judges and
not this years?191 Why was the Court in 1977 best equipped to handle the right of
publicity and why should the 2016 Supreme Court be faced with the holding in
Zacchini in deciding whether or not student-athletes in Keller or professional
athletes in Davis have the right of publicity in the context of video games?
Furthermore, why is it not the Supreme Court in 2016 that decides how much
protection to give videogame manufacturers so they have notice for how far they
can push their creativity? Precedent has corrupted the Court at the expense of
individual freedoms and creativity.
Finally, without a uniform test to evaluate these claims, future litigants remain
in the dark as to whether or not they have a valid claim. The most common test that
is applied is the transformative test, which raises the claim once again on whether or
not the computer animations that create the avatar characters are transformative
enough. Even if they are not transformative, the basic premise of transforming ones
image would imply that there the players right of publicity is no longer applicable
because the avatar has been transformed into something other than its NFL
counterpart.
The athletic likenesses are but one of the raw materials from which the broader
game is constructedthe marketability and economic value of the game comes
from the creative elements within, not from the pure commercial exploitation of a
celebrity image. The game is not a conventional portrait of a celebrity, but a work
consisting of many creative and transformative elements.192
Under the relatedness test, the use of players identities in video games would
have been fully protected by the First Amendment because, unlike in the Rogers
case, any particular players identity in the game is at a much lower threshold than
the characters were in Ginger and Fred. If taken as an unjust enrichment claim as
Kalven argued, no social purpose is served by having the defendant get some free
aspect of the plaintiff that would have market value and for which he would
normally pay.193 If the players made the videogame relevant or commercially
valuable, they should reap the benefits of their economic value to the game. Even if
189
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932); See also Kimble v. Marvel
Entertainment, LLC, 135 S. Ct. 2401 (2015).
190
Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 Constitutional
Commentary 289 (2005).
191
Id.
192
In re NCAA, 724 F.3d 1268 (9th Cir. 2013) (Thomas, J., dissenting).
193
Richard T. Karcher, The Use of Players Identities in Fantasy Sports Leagues: Developing Workable
Standards for Right of Publicity Claims, 111 Penn St. L. Rev. 557, 559 (2007) (citing Harry Kalven,
Privacy in Tort LawWere Warren and Brandeis Wrong?, 31 L. & Contemp. Prob. 326, 331 (1966)).
144
that was true, were the players identities exploited or under these tests, could we
find that Madden NFL actually made these players on the historic teams relevant
again? Although Zacchini supported the cannonball performers right of publicity,
the Court gave a very revealing statement for how plaintiffs right of publicity being
exploited may not result in damages being awarded.
It is possible, of course, that respondents news broadcast increased the value of
petitioners performance by stimulating the publics interest in seeing the act live. In
these circumstances, petitioner would not be able to prove damages and thus would
not recover. But petitioner has alleged that the broadcast injured him to the extent of
$25,000, and we think the State should be allowed to authorize compensation of this
injury if proved.194
This language may be very persuasive for EA Sports if the videogame
manufacturer can prove that the plaintiffs should not be awarded damages because
Madden NFL enhanced the class action players reputation rather than a true
exploitation of their economic opportunities.195 Although the language in Zacchini
was simply dicta, it remains an interesting component to the future of this current
litigation.
VI. CONCLUSION
The future of the right of publicity throughout the United States remains
uncertain. The Supreme Courts decision to deny certiorari of the Madden NFL
videogame case furthers stalls the Courts ability to stabilize an area of the law that
is still developing and to give lower courts direction as to how the right of publicity
should evolve. The balance between a man or womans economic value being
exploited against the commercial expression of a work has left litigants confused.
With various tests being used in the judiciary and different levels of common law
and statutory protection throughout the country, it is time that the Supreme Court
gets in the game.
194
Zacchini v. Scripps-Howard Broadcasting, Inc., 433 U.S. 562 (1977).
195
Proving a remedy was affirmed in Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998) (To
sustain a common law cause of action for commercial misappropriation, a plaintiff must prove: (1) the
defendants use of the plaintiffs identity; (2) the appropriation of plaintiffs name or likeness to
defendants advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.) (citing
Eastwood v. Superior Court of Los Angeles County, 198 Cal. Rptr. 342, 347 (Cal Ct. App. 1983)).
145

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VOL.

16:1 VIRGINIA SPORTS AND ENTERTAINMENT LAW JOURNAL FALL 2016

II. HISTORY OF THE RIGHT OF PUBLICITY

A. The Theory Behind the Law

Initially, courts refused to characterize celebrity names and likenesses as

B. A Legal Right to Publicity

As legal scholars and judicial jurisprudence began to advocate for a right of

It is possible, of course, that respondents news broadcast

limited purpose of allowing the characters to perform three of plaintiffs musical

III. STATE RIGHT OF PUBLICITY STATUTES VS. COMMON LAW

As the right of publicity has evolved, it has been understood as commonly a

as an actual or assumed namethat is intended to identify the person.97 Although

The 1953 Second Circuit Court of Appeals decision in Haelen Laboratories,

ability of manufacturers from unjustly enriching themselves at the expense of public

IV. THE CONTROVERSY BEHIND THE TEST

Applications of this test in First Amendment defenses of right of publicity claims

B. The Relatedness Test

A second test was founded in Rogers v. Grimaldi,137 in a landmark Second

C. The Predominant Purpose Test

California Supreme Courts holding in Winter v. D.C. Comics.151 In Winter, the

V: THE FUTURE OF VIDEO GAMES

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