## Facts

- Electronic Arts Inc. (EA) publishes the *Madden NFL* video game series, which lets users control virtual football players in simulated games.
- The games include current NFL teams and players with licensed names and likenesses, and also “historic teams” featuring thousands of former NFL players.
- For historic teams, EA did not obtain consent from, or pay, many former players.
- Former NFL players sued, alleging EA used their likenesses without authorization by creating avatars that matched their physical characteristics, positions, and biographical details, making them identifiable even without names.
- EA filed a special motion to strike under California’s anti-SLAPP statute, arguing the claims targeted protected speech and were barred by First Amendment and related defenses.
- The district court denied the anti-SLAPP motion, and EA took an interlocutory appeal.

## Issues

1. Whether EA showed a probability of prevailing under California’s transformative-use test such that the First Amendment barred the right-of-publicity claims.
2. Whether EA established a probability of prevailing under a common-law public-interest defense or California Civil Code § 3344(d)’s “public affairs” exemption.
3. Whether the *Rogers v. Grimaldi* test applies to these right-of-publicity claims.
4. Whether EA’s inclusion of former players’ likenesses was protected as “incidental use.”

## Decision

- The Ninth Circuit affirmed the denial of EA’s anti-SLAPP motion to strike.
- EA did not show its use was transformative where the avatars realistically depicted the players performing their real-life activity (playing football) without meaningful alteration.
- EA did not establish that the public-interest defense or § 3344(d) “public affairs” exemption applied to its commercial entertainment product.
- The *Rogers* test was held inapplicable to plaintiffs’ right-of-publicity claims.
- EA did not show incidental use because the former players’ likenesses were central to the game’s commercial purpose of realistic football simulation.

## Legal Principles

- Under California’s anti-SLAPP framework, once protected activity is assumed or shown, the plaintiff must demonstrate a probability of prevailing; a defendant may prevail if its defenses defeat liability as a matter of law.
- California’s transformative-use test protects expressive works only where significant creative elements transform the depiction into something more than a realistic imitation of the person.
- Including substantial creative context (e.g., teams, stadiums, commentary) does not, by itself, transform realistic depictions of individuals when the individuals are portrayed as themselves doing what they are known for.
- The common-law public-interest defense and Civil Code § 3344(d)’s “public affairs” exemption do not broadly immunize commercial entertainment products that exploit identity to increase realism and market appeal.
- “Incidental use” does not apply where use of identity is a key feature and a core driver of the product’s commercial value.

## Conclusion

The Ninth Circuit allowed former NFL players’ right-of-publicity claims to proceed because EA did not show its realistic use of their likenesses in *Madden NFL* was transformative, incidental, or otherwise protected by the asserted public-interest, public-affairs, or *Rogers* defenses for purposes of anti-SLAPP dismissal.


Davis v. Elec. Arts Inc., 775 F.3d 1172 (9th Cir. 2015)