On December 11, 2017, U.S. District Judge Richard Seeborg refused Electronic Arts Inc.’s (EA) request to be dismissed from a retired NFL player’s putative class action. The suit alleged that EA improperly used the retired players’ likenesses in Madden video games. The putative class action was filed in 2010 and claimed EA violated their publicity rights by including their likenesses in Madden games without obtaining permission from 2001 to 2009. Although the retired players’ names do not appear in the game, the players claim their real-life physical attributes, as well as their skills, former positions, and other identifiers, could be linked back to them. The players also claimed their names appeared in the source code for the games.
Judge Seeborg’s decision determined EA’s August motion that moved to have the remaining claims in the suit dismissed. EA’s argument centered on the Ninth Circuit ruling in Maloney v. T3Media, which found the company’s licensing of photographs of former college basketball players from a championship game was protected by the Copyright Act. In addition, the panel in Maloney held that T3Media did not violate the players’ publicity rights because they were merely subjects of the photo and their images were not used for advertising or merchandising purposes. EA asserted that its suit was similar to Maloney because the Madden games were protected by the Copyright Act just like the photos. Further, EA claimed it was not profiting off of the players’ likenesses because their names, images, or jersey numbers were not used to identify them.
However, Judge Seeborg did not find EA’s argument persuasive. Judge Seeborg stated there was no dispute that video games are generally copyrightable, but that does not mean elements within the game are necessarily copyrightable as well. A recording of actual football games satisfy the copyright requirement of being fixed in a tangible medium; however, the Madden games’ game play is not similarly fixed. Instead, Judge Seeborg noted that, “…game play in Madden games is dynamic, interactive, variable, and in the hands of the consumer….The Madden games…allow game play that is not fixed in a tangible medium of expression, and part of plaintiff’s claims is that their identities are reflected in that game play.” Thus, Judge Seeborg held that Maloney does not govern the case and EA’s motion to dismiss the claims must be denied.