Ninth Circuit Denies Rehearing in Davis v. Electronic Arts

By Jennifer E. Rothman
July 15, 2015

The Ninth Circuit denied rehearing in its controversial decision in Davis v. Electronic Arts that the use of real professional athletes identities in a video game was not protected by the First Amendment.  This decision leaves at risk numerous expressive and nonfiction works that include portrayals of historical fiction.  For a detailed analysis of why this decision is so dangerous to free speech see the Amicus Brief that Eugene Volokh and I drafted and submitted to the Ninth Circuit on behalf of Constitutional and Intellectual Property Law Professors.  A certioriari petition will likely be filed in the case in the next few weeks.  Stay tuned...