It’s In The Game…But Should EA Pay For It?

Electronic Arts makes some of the most realistic sports video games on the market.  To do this, EA uses the likenesses of real players, and captures each player’s unique physical appearance and signature moves.  EA’s games often include former players’ likenesses, transporting gamers back to a time when the “great ones” took the field and gave it their all.

But can EA include simulations of former players without paying the real players for the use of their likenesses?  The answer, according to the Ninth Circuit Court of Appeals, is no.

Last month, the Circuit Court handed down its decision in Davis v. Electronic Arts (which you can read here).  In that case, the court was asked to balance the right of publicity of former football players against EA’s First Amendment right to use the players’ likenesses in EA’sMadden NFL series of video games.

But here’s the twist: the case didn’t involve EA’s use of current players’ likenesses.  (EA already had a license to  do that).  Instead, the case involved EA’s ability to use the likenesses of former players from so-called “historic teams” without obtaining a license from the former players themselves.

So you might ask: if EA needs a license to use current players’ likenesses, why wouldn’t they need a license to use former players’ likenesses?  Great question.  It’s the same question that certain former players, such as Vince Ferragamo, asked as well.  And considering that the Madden NFL video games use the likenesses of roughly 6,000 other former NFL players, it’s a question that needed to be answered by the court.

The former players’ argument was fairly straightforward; EA’s defense was not.  The players argued that EA violated their rights of publicity by including their likenesses in the Madden NFL video game without their permission.  (It was the old “pay me or don’t play me” defense.)

EA argued that its activities were protected under the First Amendment, and that the former players’ likenesses were merely “incidental” to EA’s main commercial purpose, which was to create a realistic visual simulation of football games involving current and former National Football League teams.  (This is what IP lawyers call the “incidental use” defense.  See, there’s a bit of education in every blog article.)

EA also argued that they didn’t merely take the players’ likenesses and copy them; instead, EA “transformed” the likenesses into something that went beyond mere imitation.  (This is called the “transformative use” defense.  Clearly there’s no need for you to go to law school as long as I’m around.)

The Court rejected EA’s position, and held that that EA’s replication of the former player’s physical characteristics was neither “incidental” nor “transformative.”  In its decision, the Court pointed out that “the former players’ likenesses have unique value and contribute to the commercial value of Madden NFL.  EA goes to substantial lengths to incorporate accurate likenesses of current and former players, including paying millions of dollars to license the likenesses of current players.”


Which brings us back to my original question: “If EA needs a license to use current players’ likenesses, why wouldn’t they need a license to use former players’ likenesses?

Now you know the answer.  They do.