The Entertainment Software Association, whose members include 30 publishers of computer and video games, today filed an amicus brief supporting Electronic Arts' petition for the Supreme Court to review the Ninth Circuit's decision in Davis v. Electronic Arts. In Davis, the Ninth Circuit re-affirmed one of its decisions in the O'Bannon litigation, which held in 2013 that EA did not have a First Amendment right to use the likenesses of college athletes in its NCAA video games. Davis involves the same claims, except that the plaintiffs are a putative class of retired NFL athletes and the games they challenge are the pre-2010 versions of Madden NFL.
Those versions of the game included the option to play with "historic" teams, in addition to current NFL rosters. EA stopped including that feature in Madden NFL in 2010 after lawsuits began to be filed.
ESA's amicus brief argues that the Davis decision conflicts with a 2011 Supreme Court decision, in a case involving ESA, which held that video games are entitled to the same status under the First Amendment as other, more traditional forms of media, like books and movies. Davis held that EA's games are not constitutionally protected because they are too realistic, a result that contradicts well-settled First Amendment doctrine that protects the dissemination of accurate speech about real people and events, like biographies. The brief further argues that Davis threatens the viability of other reality-based electronic games, including popular games that simulate events like presidential elections and historic military campaigns.
ESA's amicus brief also notes that Davis and some other lower court decisions about realistic video games seem to reflect unwarranted judicial wariness about new media technologies, much like the negative reaction that many courts initially (but mistakenly) had to the introduction of movies a century ago. Finally, the brief argues that the core problem with the way many lower courts handle this area of law is that they misunderstand the Supreme Court's decision almost four decades ago in Zacchini v. Scripps-Howard Broadcasting. Zacchini held that a local news station did not have a First Amendment right to broadcast in its entirety the live stunt that a human cannonball artist performed at a county fair. ESA argues that Zacchini was simply a dispute over who owns the broadcast rights to entire live entertainment events, but lower courts have instead misconstrued it to apply far more broadly to any dispute over anyone's likeness in any form of media.
Amicus briefs supporting EA were also filed by a group of 31 law professors headed by Professors Eugene Volokh at UCLA School of Law and Jennifer Rothman at Loyola Law School, as well as by the Electronic Frontier Foundation and several other organizations. Those briefs argue that the Supreme Court needs to clarify how the First Amendment limits the right of publicity, because lower court decisions are so conflicting that the same type of work may be protected in one place but unlawful in another. They also argue that Davis got the First Amendment wrong because it discriminates against certain forms of media like video games and comic books, while favoring more traditional genres like regular printed books.
Davis has been the subject of posts on this blog in the past, but so far has been something of a sleeper case compared to the high-profile O'Bannon litigation and the Dryer lawsuit by retired NFL athletes over the use of their likenesses in NFL Films documentaries (which is pending in the Eighth Circuit). However, that will change quickly if the Supreme Court agrees to review Davis. The Court is likely to take that question up around January 2016, so stay tuned.
Nathan Siegel represents the Entertainment Software Association in its Supreme Court amicus brief in Davis.
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