The Ninth Circuit Court of Appeals recently handed down the latest in a string of opinions in the continuing battle of former athletes—both professional and amateur—against video game creators whose games depict athletes’ names, images, or personally identifying statistics, uniforms, or other attributes. The holding in Davis v. Electronic Arts Inc. was consistent with previous athletes-v.-video-games decisions, both in providing a definitive statement on the current state of the law governing right of publicity cases and in raising increasingly troubling questions about the First Amendment analysis employed in such cases.

Davis and others sued Electronic Arts (“EA”) making the familiar claim that EA’s use of recognizable replications of themselves and other players and former players in EA’s popular Madden NFL series of video games violates the players’ right of publicity under statutory and common law—in other words, is something for which EA should obtain a license and compensate the players. EA moved to strike the plaintiffs’ claims on constitutional grounds, arguing that its use of players’ images is protected by the First Amendment and does not require the players’ permission, paid or otherwise.

To read Bob’s entire article, “Latest Football Video Game Decision Prompts Concerns Over Constitutional Analysis in Right of Publicity Cases,” please click here.