Entertainment & Sports Law

Davis v. Electronic Arts, Inc. — Study Notes

775 F.3d 1172 (9th Cir. 2015)

Study notes for Davis v. Electronic Arts, Inc.: professor notes, cold call prep, exam angles, and memory aids.

The unauthorized use of a retired athlete's likeness in a video game without consent violates the right of publicity and is not protected by the First Amendment.
Professor Notes

In Davis v. Electronic Arts, the Ninth Circuit addressed the tension between the right of publicity and First Amendment protections in the context of video games. The court held that Electronic Arts, by incorporating the likenesses of retired NFL players into its Madden NFL series without consent, violated their right of publicity. This decision is significant in that it emphasizes the importance of consent in the commercial exploitation of individuals' identities, especially in creative works that strive for realism. The court applied the transformative use test and determined that the use of players' likenesses did not provide sufficient transformation to warrant First Amendment protection, establishing an important precedent for how likenesses in video games are treated under the law.

Cold Call Prep
  1. 1What is the transformative use test, and how was it applied in this case?
  2. 2What are the implications of this ruling for video game developers?
  3. 3How does this case relate to the rights of publicity in the context of social media?
  4. 4Discuss the balance between creative expression and rights of publicity as seen in Davis v. Electronic Arts.
  5. 5What are the potential future challenges following the ruling in this case?
  6. 6How might the outcome differ if the players were actively participating in the NFL?
Mnemonic Device

Davis's Likeness = No Consent, No Game.

Distinguish From
CaseDistinction
Gordon v. Hain Celestial Group, Inc.In Gordon, the court found that the use of a celebrity's likeness was transformative due to the context of its use in a parody, contrasting it with Davis where no transformation was evident.
Matthews v. WEA Corp.In Matthews, the court ruled in favor of the right of publicity due to clear infringing use, but the context involved promotional efforts rather than a video game, highlighting differences in media.
Policy Arguments

For the Rule

Protecting a retiree’s right of publicity respects their personal rights and prevents exploitation of their likeness for commercial gain without compensation.

Against the Rule

Striking down the use of likenesses may hinder creative expression in the gaming industry and reduce incentives for realism and innovation in artistic representation.

Class Discussion Points
  • Discuss how the ruling may affect future creative works in digital media and sports.
  • Examine the implications for privacy rights versus free speech in entertainment.
  • Consider the role of consent in modern media and how it varies by context.
  • Analyze the transformative use test and discuss its adequacy in protecting both creative and personal rights.
  • Explore how this case might influence athlete endorsements and licensing in the future.
Exam Angle

Davis v. Electronic Arts may appear on exams focusing on the interplay between intellectual property rights, specifically the right of publicity, and First Amendment protections in creative works. Be prepared to analyze transformative use and its implications for similar cases.

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