Former NFL Players Oppose EA’s Play to Dismiss Madden Suit
On September 1, 2017, a proposed class of former NFL players moved a California Federal Court not to dismiss their suit against Electronic Arts (EA), game maker, for the use of their likenesses in the Madden video games. EA is attempting to remove the remaining five claims of the suit after it was successful in August in dismissing the former NFL players’ claims under a state law statute. EA claimed that the former players’ remaining publicity rights claims are preempted by the Copyright Act.
The former NFL players alleged that EA violated their rights of publicity by including their likenesses in the Madden games from 2001-2009 without obtaining their permission. Although EA did not use the former players’ names, they alleged that EA used their physical attributes, positons, relative skill, and other types of identification that linked back to them. EA was already successful in dismissing the former NFL players’ claims under the California statute because the court held the statute required a visual depiction that is readily identifiable as the plaintiff. EA now intends to dismiss the remaining former NFL players’ claims: right of publicity under California common law, conversion, trespass to chattels, unjust enrichment, and violation of the California Unfair Competition Act. EA claimed that all of the remaining claims are preempted by the Copyright Act.
In response, the former NFL players argued that EA should not even be able to claim preemption under the Copyright Act because EA failed to raise it in both a previous motion to dismiss and its answer to the complaint. In addition to its procedural argument, the former NFL players argued their claims are not preempted by the Copyright Act because EA used their identities and likenesses without authorization with the intent to exploit commercial value in those likenesses. However, EA claimed this case resembles a previous California decision in Maloney v. T3Media Inc., which held that photographs of players were protected under the Copyright Act. The former NFL players’ argued Maloney does not apply because the photographs in that case were not used for merchandising or advertising, unlike the Madden games. The former NFL players’ found further support in Maloney’s citation to the decision in Keller v. Electronic Arts Inc. that served as an example of when the Copyright Act did not preempt the plaintiff’s claims. The court earlier in this case determined the present case was “factually indistinguishable” from Keller when determining whether EA had a First Amendment argument. Thus, the former NFL players will have to wait and see if the court continues the Keller comparison.