Davis v. Electronic Arts, Inc. vs. Gordon v. Party City of Texas, Inc.

The cases of Davis v. Electronic Arts, Inc. and Gordon v. Party City of Texas, Inc. both delve into the intricacies of rights of publicity within the context of commercial use of an individual’s likeness. In Davis, the Ninth Circuit analyzed whether the unauthorized use of the names and likenesses of former college football players in a video game by Electronic Arts constituted a violation of the athletes' right of publicity. The court ultimately ruled in favor of the players, citing that the use of their likenesses in this setting went beyond the realm of artistic expression and into commercial exploitation. Conversely, in Gordon, the Fifth Circuit addressed a different facet of publicity rights, focusing on the use of a video of a customer at a Party City store, which was used for promotional purposes without the customer’s permission. Here, the court held that the customer did indeed have a right to protections against the unauthorized commercial exploitation of her image, yet the context of use - an advertisement - mattered significantly.

• Davis involved athletes’ likeness in a video game, while Gordon involved a customer in a promotional video
• The Ninth Circuit found a broader context of commercial exploitation in Davis, compared to Gordon's relatively straightforward promotional use
• Gordon dealt with a retail context, whereas Davis focused on digital media and entertainment

Together, these cases illustrate the evolving nature of publicity rights, emphasizing the need for context in evaluating the use of likenesses and the growing need for legal protections as commercial enterprises increasingly utilize individual identities in diverse media.