NCAA Student–Athlete Name & Likeness Licensing Litig. v. Elec. Arts Inc.

Citation724 F.3d 1268
Decision Date31 July 2013
Docket NumberNo. 10–15387.,10–15387.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
PartiesIn re NCAA STUDENT–ATHLETE NAME & LIKENESS LICENSING LITIGATION, Samuel Michael Keller; Edward C. O'bannon, Jr.; Byron Bishop; Michael Anderson; Danny Wimprine; Ishmael Thrower; Craig Newsome; Damien Rhodes; Samuel Jacobson, Plaintiffs–Appellees, v. Electronic Arts Inc., Defendant–Appellant, and National Collegiate Athletic Association; Collegiate Licensing Company, Defendants.

OPINION TEXT STARTS HERE

Kelli L. Sager (argued), Alonzo Wickers IV, Karen A. Henry, Lisa J. Kohn and Anna R. Buono, Davis Wright Tremaine LLP, Los Angeles, CA; Robert A. Van Nest, Steven A. Hirsch and R. James Slaughter, Keker & Van Nest, LLP, San Francisco, CA, for DefendantAppellant.

Steve W. Berman (argued) and Erin K. Flory, Hagens Berman Sobol Shapiro LLP, Seattle, WA; Robert Carey and Leonard Aragon, Hagens Berman Sobol Shapiro LLP, Phoenix, AZ, for PlaintiffsAppellees.

Douglas E. Mirell, Loeb & Loeb LLP, Los Angeles, CA, for Amicus Curiae Motion Picture Association of America, Inc.

Amy E. Margolin, Bien & Summers, San Francisco, CA; Michael Rubin and P. Casey Pitts, Altshuler Berzon LLP, San Francisco, CA, for Amici Curiae National Football League Players Association, Major League Baseball Players Association, National Basketball Players Association, National Hockey League Players' Association, and Major League Soccer Players Union.

Thomas R. Carpenter and Purvi Patel, American Federation of Television & Radio Artists, AFL–CIO, New York, NY; Duncan Crabtree–Ireland and Danielle S. Van Lier, Screen Actors Guild, Inc., Los Angeles, CA, for Amici Curiae Screen Actors Guild, Inc., American Federation of Television & Radio Artists, AFL–CIO, Writers Guild of America, West, Inc., Creative Property Rights Alliance, Fifty Six Hope Road Music Ltd., Luminary Group LLC, Thomas Steinbeck, and Gail Knight Steinbeck.

Nathan Siegel and Lee Levine, Levine Sullivan Koch & Schulz, L.L.P., Washington, District of Columbia, for Amici Curiae Advance Publications, A & E Television Networks, Allied Daily Newspapers of Washington, Association of American Publishers, Activision, California Newspaper Publishers Association, Capcom USA, Comic Book Legal Defense Fund, E! Entertainment Television, ESPN, First Amendment Coalition, First Amendment Project, Freedom Communications, The Gannett Company, Gawker Media, Hybrid Films, ITV Studios, Konami Digital Entertainment, The Los Angeles Times, The McClatchy Company, Namco Bandai Games America, Original Productions, The Press–Enterprise Company, Radio Television Digital News Association, Sirens Media, Take Two Interactive Software, Thq, Viacom, The Washington Newspaper Publishers Association, and Wenner Media.

Gregory L. Cutner and Robert J. Wierenga, Schiff Harden, LLP, Ann Arbor, MI; Rocky N. Unruh, Schiff Hardin, LLP, San Francisco, CA, for Amicus Curiae National Collegiate Athletic Association.*

Appeal from the United States District Court for the Northern District of California, Claudia A. Wilken, District Judge, Presiding. D.C. No. 4:09–cv–01967–CW.

Before: SIDNEY R. THOMAS and JAY S. BYBEE, Circuit Judges, and GORDON J. QUIST, Senior District Judge.**

OPINION

BYBEE, Circuit Judge:

Video games are entitled to the full protections of the First Amendment, because [l]ike the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world).” Brown v. Entm't Merchs. Ass'n, ––– U.S. ––––, 131 S.Ct. 2729, 2733, 180 L.Ed.2d 708 (2011).1 Such rights are not absolute, and states may recognize the right of publicity to a degree consistent with the First Amendment. Zacchini v. Scripps–Howard Broad. Co., 433 U.S. 562, 574–75, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). In this case, we must balance the right of publicity of a former college football player against the asserted First Amendment right of a video game developer to use his likeness in its expressive works.

The district court concluded that the game developer, Electronic Arts (EA), had no First Amendment defense against the right-of-publicity claims of the football player, Samuel Keller. We affirm. Under the “transformative use” test developed by the California Supreme Court, EA's use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown. The other First Amendment defenses asserted by EA do not defeat Keller's claims either.

I

Samuel Keller was the starting quarterback for Arizona State University in 2005 before he transferred to the University of Nebraska, where he played during the 2007 season. EA is the producer of the NCAA Football series of video games, which allow users to control avatars representing college football players as those avatars participate in simulated games. In NCAA Football, EA seeks to replicate each school's entire team as accurately as possible. Every real football player on each team included in the game has a corresponding avatar in the game with the player's actual jersey number and virtually identical height, weight, build, skin tone, hair color, and home state. EA attempts to match any unique, highly identifiable playing behaviors by sending detailed questionnaires to team equipment managers. Additionally, EA creates realistic virtual versions of actual stadiums; populates them with the virtual athletes, coaches, cheerleaders, and fans realistically rendered by EA's graphic artists; and incorporates realistic sounds such as the crunch of the players' pads and the roar of the crowd.

EA's game differs from reality in that EA omits the players' names on their jerseys and assigns each player a home town that is different from the actual player's home town. However, users of the video game may upload rosters of names obtained from third parties so that the names do appear on the jerseys. In such cases, EA allows images from the game containing athletes' real names to be posted on its website by users. Users can further alter reality by entering “Dynasty” mode, where the user assumes a head coach's responsibilities for a college program for up to thirty seasons, including recruiting players from a randomly generated pool of high school athletes, or “Campus Legend” mode, where the user controls a virtual player from high school through college, making choices relating to practices, academics, and social life.

In the 2005 edition of the game, the virtual starting quarterback for Arizona State wears number 9, as did Keller, and has the same height, weight, skin tone, hair color, hair style, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller. In the 2008 edition, the virtual quarterback for Nebraska has these same characteristics, though the jersey number does not match, presumably because Keller changed his number right before the season started.

Objecting to this use of his likeness, Keller filed a putative class-action complaint in the Northern District of California asserting, as relevant on appeal, that EA violated his right of publicity under California Civil Code § 3344 and California common law.2 EA moved to strike the complaint as a strategic lawsuit against public participation (“SLAPP”) under California's anti-SLAPP statute, Cal.Civ.Proc.Code § 425.16, and the district court denied the motion. We have jurisdiction over EA's appeal pursuant to 28 U.S.C. § 1291. See Batzel v. Smith, 333 F.3d 1018, 1024–26 (9th Cir.2003). 3

II

California's anti-SLAPP statute is designed to discourage suits that “masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.” Batzel, 333 F.3d at 1024 (internal quotation marks omitted). The statute provides:

A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Cal.Civ.Proc.Code § 425.16(b)(1). We have determined that the anti-SLAPP statute is available in federal court. Thomas v. Fry's Elecs., Inc., 400 F.3d 1206 (9th Cir.2005) (per curiam).

We evaluate an anti-SLAPP motion in two steps. First, the defendant must “make a prima facie showing that the plaintiff's suit arises from an act by the defendant made in connection with a public issue in furtherance of the defendant's right to free speech under the United States or California Constitution.” Batzel, 333 F.3d at 1024. Keller does not contest that EA has made this threshold showing. Indeed, there is no question that “video games qualify for First Amendment protection,” Entm't Merchs. Ass'n, 131 S.Ct. at 2733, or that Keller's suit arises from EA's production and distribution of NCAA Football in furtherance of EA's protected right to express itself through video games.

Second, we must evaluate whether the plaintiff has “establish[ed] a reasonable probability that the plaintiff will prevail on his or her ... claim.” Batzel, 333 F.3d at 1024. “The plaintiff must demonstrate that the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by plaintiff is credited.” Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir.2001) (internal quotation marks omitted). The statute “subjects to potential dismissal only those actions in which the...

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