EA Still on the Hook for NFL Likeness Misuse; Wins on Sanctions Motion in the Meantime

As we have previously reported, Electronic Arts Inc. continues to be under fire for trying to evade responsibility for its alleged unauthorized use of thousands of NFL players’ likenesses in its video games, most notably in Madden NFL. On March 29, 2018, the retired players filed a motion in opposition to EA’s third attempt at summary judgment.

According to the retired players’ motion, they represent a proposed class of over 7,500 other retired NFL players who claim to have been similarly aggrieved by EA’s concededly “core mission . . . to accurately impersonate NFL players.” In carrying out this mission, the class says that EA strategically placed the physically and biographically similar avatars in the former players’ actual positions and on the same teams as they had previously played. The class argues that EA publicized these uses by coining certain features of the game “Historic” and “All-Time,” accurately pointing to the players’ retired statuses. Between the physical and biographical similarities, and the description of several game features, the former players say that this combination of factors evidences the easily identifiable nature of the avatars. They assert that in various online fora, Madden users have been routinely identifying the players with precision.

In support of their allegations, the former players avow that EA had been paying “in excess of $30 million per year for the right to use current NFL players[’] identities and likenesses in Madden NFL pursuant to a group license,” meaning that EA was likely aware, and chose to ignore, that its practices required licensing in the first place. The class argues that aside from the higher standard of name or likeness protected by the right of publicity, “anything evoking Plantiffs’ identities or personas” is off-limits. Indeed, the class provides that according to precedent, “any unauthorized evocation of an individual’s identity for commercial purposes is sufficient to create a triable issue of fact regarding the appropriation of a person’s common law right of publicity.”

EA asserted its First Amendment rights as a primary defense, which the class quickly dismantled in its motion, providing that the inherent value of using an individual’s identity or likeness overcomes those rights in this context. As a secondary defense, EA stated that the avatars were of a transformative use, meaning EA had added “significant creative elements so as to be transformed into something other than a mere celebrity likeness or imitation,” which the players likewise refuted.

On April 2, 2018, in continuation of the suit, a California district court issued a ruling on a previous motion by EA seeking sanctions against the class due to its evasive interrogatory responses. According to the court, the former players had ample opportunity to amend insufficient responses and what was actually submitted “appeared to be a two-page excerpt from a longer response,” therefore still deficient, and two days late. As a result, the class is now precluded from raising theories outside of economic damage, lay testimony regarding the value of the likenesses, and additional evidence not already provided in the course of discovery. Additionally, EA sought monetary sanctions in the amount of $45,000, though the court settled on $25,000 for EA’s time spent “attempting to obtain Plaintiffs’ compliance and seeking court intervention.”

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