Creating a new rule that gives videogames much more limited protection than other expressive works, the Ninth Circuit has ruled that realistically depicting college athletes in videogames showing them doing what they became famous for doing—in this case, playing football—is not sufficiently transformative to avoid a state law right of publicity claim. In In re NCAA Student-Athlete Name & Likeness Licensing Litigation (Keller), 2013 WL 3928293 (9th Cir. July 31, 2013), the court held that Keller, a former college athlete prohibited by NCAA rules from commercializing his name and likeness rights, could pursue a right of publicity claim based on the use of his likeness in a football videogame—a work admittedly protected by the First Amendment—despite the game producer’s assertion of First Amendment defenses. This decision, following on the heels of the May 21, 2013 opinion in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3rd Cir. 2013), which was heavily relied on by the Keller decision, as well as its re-interpretation of precedent in the right of publicity area that had up-to-now been considered well-established, are sure to have unintended consequences extending to branded entertainment and other hybrid contexts where brand messages and creative expression combine.
Valerie Alter is a special counsel in the Business Trial Practice Group in the firm's Century City Office.