The defendant makes video games using the likenesses of college football players. The plaintiff, one such football player representing a class of other players, filed a lawsuit objecting to the use of his likeness in the games.
A work must have significant transformative elements under the five factor analysis to avoid liability for using a plaintiff’s likeness.
The plaintiff was the starting quarterback for Arizona State University (ASU) in 2005 before transferring to the University of Nebraska, where he played for the 2007 season. The defendant produces the popular video game series NCAA Football, which allows users to control avatars representing college football players. The defendant seeks to replicate the various teams as closely as possible, using both physical features and unique behaviors of players. The games omit the players’ names on the jerseys in favor of hometowns that differ form the players’ actual hometowns. That being said, users can upload rosters and change the names on the jerseys to players’ real names. The 2005 version of this game uses the plaintiff’s likeness and jersey number for the ASU team, and the 2008 version uses his likeness, but not his jersey number, for the Nebraska team.
Can the defendant use a transformative use defense to avoid liability?
No. The lower court judgement is affirmed.
Circuit Judge Thomas believes that the creative and transformative elements predominate over the commercial use of the athletes’ likenesses and should therefore should be protected by the First Amendment. Judge Thomas points out that the analytical factors point to a holistic examination of the facts and elements of a given case. He considers the defendant’s game to be a work of interactive historical fiction predominantly featuring role-playing by the user, not exploitation of a celebrity image. Judge Thomas also points out that the individual college athlete’s right of publicity is extremely limited, if not nonexistent, and that needs to factor into the First Amendment analysis.
California recognizes a defense in cases like these called “transformative use,” which the defendant invokes here. The defense is a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to transform it into something of its own. Works that have been transformed with creative elements are generally worth of First Amendment protections. There are a number of factors to consider in determining whether a work has been sufficiently transformed: (1) if the celebrity likeness is one of the raw materials from which an original work is synthesized; (2) if the work is primarily the defendant’s own expression; (3) whether the literal and imitative or the creative elements predominate in the work; (4) whether the marketability and economic value of the challenged work derive primarily from the fame of the depicted celebrity; (5) whether the artist’s skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity. The players in the defendant’s game are not materially different from the players’ actual likenesses to differentiate the game from reality, especially given that the game takes place in a realistic setting—the football field.