Supreme Court Denies Review of Davis v. Electronic Arts

By Jennifer E. Rothman
March 21, 2016

This morning the Supreme Court denied certiorari in Davis v. Electronic Arts, Inc.  This case from the Ninth Circuit rejected a First Amendment defense to right of publicity claims when the videogame Madden NFL depicted professional football players without their permission. I and many other intellectual property and constitutional law scholars had called on the court to revisit this decision which risks limiting wide swaths of expressive works that realistically depict historical figures.

Although I am ultimately not surprised that the Court denied cert. in this case, the failure of the Supreme Court to do so leaves authors, artists and other content creators without sufficient guidance about when we can use other people's identities without permission in expressive works.  The many different and conflicting lower court tests for balancing publicity rights with the FIrst Amendment remain.  Hopefully, another case will tee up in short order for the court to review that will avoid some of the downsides of granting review here.

My two cents about why the Supreme Court denied cert., other than generally avoiding granting cert. in any cases after Justice Scalia's death, are as follows:  First, there was another case that the Court considered, Mebo International v. Yamanaka, which considered whether federal courts had jurisdiction to hear anti-SLAPP challenges. Davis had originally been on the conference calendar in January and then was joined for consideration with Mebo International and delayed until the March 18th conference when the two cases could be considered together. Because the Court denied cert. in Mebo International, it is possible that it denied cert. in Davis to avoid needing to wade into the anti-SLAPP issue.  If true, this suggests that interested parties who want the Supreme Cout to consider the right of publicity and its conflict with the First Amendment should try to find a case that does not involve this procedural issue.

Second, the players and plaintiffs are sympathetic, particularly the college players in the underlying decision in Keller v. Electronic Arts, and all of the courts to decide this First Amendment issue in the context of similar facts—videogames with players—came out the same way.  For those who are very familiar with the cases, there was a bit of an echo chamber in these decisions and the analysis was not independent, but nevertheless a stronger case should be found, one with less sympathetic plaintiffs and more sympathetic defendants. Electronic Arts and the NFL and NCAA were making multi-million dollar deals for these videogames and some of the players (all of the student-athletes, and some retired NFL players) were receiving nothing in return despite perceptions that these players' identities were generating great value for others. This assessment that the players were being commercially exploited weighed heavily in their favor.

Importantly, EA did license current players' identities and licensed trademarks and copyrights from both the NCAA and NFL in producing their games. For those who read the Supreme Court's only right of publicity decision, Zacchini v. Scripps-Howard Broadcasting, broadly this case involves a circumstance in which EA customarily did pay for the right to use material, including some professional players' names and likenesses. Because the Court in Zacchini suggested that defendants should not get for free something they "normally pay" for, Davis arguably falls into this category. 

As I have written about at length, this reliance on customary practices is highly problematic. It means that any time an entity tries to avoid litigation down the road through risk-averse licensing or seeks to preserve relationships by paying licensing fees when it does not need to, it sets up a trap whereby future courts will conclude that because such uses are usually licensed such uses must be licensed. There is no stopping point for such slippery slope analyses. If Hollywood usually pays for life stories, and then doesn’t in a particular instance this appears to fit within the customary pricing reading of Zacchini.  Of course, the better reading of Zacchini is that it is limited to uses of a performer's entire act, a use that destroys all of the performer’s economic value in that act. The denial of cert. in Davis provides fodder for those with the broader, rather than this narrower view of Zacchini.  The Supreme Court’s denial of cert. obviously does not endorse the broad reading, but it does provide more latitude for courts to continue down this treacherous road.

Finally, the Court could have used the Ninth Circuit’s recent decision in Sarver v. Chartier to give them cover for a denial.  In Sarver, the Ninth Circuit upheld a First Amendment defense in the context of the alleged use of the plaintiff’s identity in the Academy-Award winning film, The Hurt Locker. The appellate court concluded that because the plaintiff in that case did not actively commercialize his identity, there was no economic value to be protected by the right of publicity and therefore the interests of the right of publicity did not overcome the filmmaker’s First Amendment right to use his identity in the film. The Ninth Circuit’s analysis in Sarver was unconvincing and, if true, still leaves filmmakers who realistically depict famous people—with commercially valuable identities—in jeopardy.  Despite the purported analysis in Sarver though, one can’t help but think that courts just don’t get videogames, at least not yet.  So those in traditional media can probably continue to sleep soundly even though cert. was denied in Davis, but the videogame world will continue to have to fret about using real people’s identities.  Lindsey Lohan’s case against Grand Theft Auto recently moved forward and perhaps between the lack of review in Davis and the language of Sarver some fuel just got thrown on her fire.