Respondents File Brief in Supreme Court in Davis v. Electronic Arts

By Jennifer E. Rothman
December 8, 2015

Michael Davis and the other retired football players who sued Electronic Arts for the use of their identities in Madden NFL filed their opposition brief today in the Supreme Court. They argue against granting certiorari in the case. The Ninth Circuit previously held that the alleged use of the players' identities is not protected by the First Amendment. 

In their brief the respondents narrowly construe the question for the Supreme Court. They urge the Court to focus on the procedural posture of the case. They contend that the First Amendment issue should not be decided until discovery has been conducted in the case. Such a position directly contravenes the purpose behind California’s speech-protective anti-SLAPP statute.

The respondents also argue that there is no circuit split on how to evaluate a First Amendment defense to a right of publicity claim because all courts engage in some form of balancing. This is a highly misleading characterization of the state of the law given the wide array of tests used by courts that are outcome determinative. The holding in CBC, for example, that uses of players’ identities in fantasy sports games are protected by the First Amendment, cannot be harmonized with the holdings in Davis and Keller, that uses in video games are not. The respondents also contend that principles of constitutional avoidance require the Court to delay consideration of the First Amendment claim until after the question of whether there is an initial prima facie case made for right of publicity violations is answered. They also claim that no speech has been chilled by the holdings in Davis, Hart, and Keller

The respondents’ brief fails to explain how the broad interpretation of the transformative use test adopted by the Third and Ninth Circuits would allow realistic portrayals of people who have been important figures in history.  As I and other constitutional law and intellectual property law professors have observed, the current holding in Davis and Keller jeopardize all works that include historical figures and realistically portray events and real people. There is no factual dispute in this case that requires delay of First Amendment adjudication and nothing in the respondents’ brief points to any outstanding fact issue that would alter the First Amendment analysis.  The case is ripe for review by the Supreme Court and there should be no further delay in providing important guidance on the role of the First Amendment in right of publicity cases that involve such realistic depictions in expressive works.

Respondents Brief, Davis v. Electronic Arts (Filed Dec. 8, 2015)