775 F.3d 1172 (9th Cir. 2015)
The Davis v. Electronic Arts, Inc.
Does the use of a retired athlete's likeness in a video game without consent constitute an infringement of the right of publicity, notwithstanding First Amendment protections?
The right of publicity under California law protects individuals from unauthorized commercial exploitation of their identity. However, this right must be balanced against First Amendment protections, particularly where the likeness is used in expressive works.
The Ninth Circuit held that Electronic Arts' use of player likenesses in its Madden NFL game was not protected by the First Amendment under the transformative use test and thus violated the players' rights of publicity.
Davis v. Electronic Arts underscores the importance of the right of publicity in contemporary media, delineating the extent to which video game developers can incorporate real-world likenesses into their products. The decision highlights the careful balancing act between protecting individual proprietary rights and permitting creative freedom. For law students, understanding this case enhances their comprehension of intellectual property rights and their application in modern contexts such as digital entertainment, elucidating how courts are likely to navigate similar conflicts in the future.