## Facts

- Jim Brown, a retired NFL Hall of Fame running back, alleged Electronic Arts (EA) included an avatar in *Madden NFL* historic teams that matched his physical and biographical attributes.
- The avatar appeared as a Cleveland Browns running back on the 1965 Browns team; Brown alleged it was “nearly identical” to him, though the game did not use his name.
- Brown sued under Lanham Act § 43(a) on a false-endorsement theory, claiming the depiction likely caused consumers to believe he endorsed or was affiliated with *Madden NFL*.
- The district court dismissed the § 43(a) claim under Rule 12(b)(6), holding the First Amendment barred the claim under the *Rogers v. Grimaldi* framework, and declined supplemental jurisdiction over state-law claims.
- Brown appealed only the dismissal of his federal Lanham Act claim.

## Issues

1. What test governs a Lanham Act § 43(a) false-endorsement claim challenging the depiction of a person’s likeness in an expressive work: ordinary likelihood of confusion, an “alternative means” test, or the *Rogers v. Grimaldi* test?
2. Under *Rogers*, did EA’s use of an alleged Jim Brown likeness in *Madden NFL* (a) lack artistic relevance or (b) explicitly mislead consumers as to Brown’s endorsement or affiliation?

## Decision

- The Ninth Circuit affirmed dismissal of Brown’s Lanham Act § 43(a) false-endorsement claim.
- The court held *Madden NFL* is an expressive work entitled to First Amendment protection, and *Rogers* supplies the governing test for this type of § 43(a) claim.
- EA’s depiction had at least some artistic relevance to the game’s aim of realistic NFL simulation, satisfying *Rogers*’ low relevance threshold.
- Brown did not plausibly allege conduct that was explicitly misleading, because EA made no overt claim or explicit statement that Brown endorsed or helped produce the game.
- The court held application of *Rogers* at the pleading stage was proper because the complaint failed to allege facts meeting either prong necessary to overcome First Amendment protection.

## Legal Principles

- Video games are expressive works protected by the First Amendment.
- For Lanham Act § 43(a) claims targeting use of identifying material in an expressive work, the *Rogers v. Grimaldi* test limits liability unless:
  - the use has no artistic relevance to the underlying work whatsoever, or
  - the use explicitly misleads consumers about source, content, or endorsement.
- Evidence suggesting a likelihood of confusion may be insufficient under *Rogers*; the second prong requires an explicit indication, overt claim, or explicit misstatement of endorsement or affiliation.
- Courts may resolve *Rogers* at the Rule 12(b)(6) stage when the allegations, taken as true, do not plausibly show lack of artistic relevance or explicit misleadingness.

## Conclusion

The Ninth Circuit held that EA’s inclusion of an alleged Jim Brown lookalike in a realistic football simulation was artistically relevant and not explicitly misleading, so the First Amendment barred Brown’s Lanham Act § 43(a) false-endorsement claim and dismissal on the pleadings was affirmed.


Brown v. Elec. Arts, Inc., 724 F.3d 1235 (9th Cir. 2013)