Case Study: Keller V. NCAA Football

Re: NCAA Student-Athlete Name & Likeness, Keller v. Electronic Arts, 9th circuit, July 31, 2013

Facts: In July of 2004 and 2007, defendant, Electronic Arts, a company that publishes video games, released the 2005 and 2008 editions of their NCAA Football series. NCAA Football is a sports video game “which allows users to control avatars representing college football players as those avatars participate in simulated games” and attempts to replicate each school's entire team as accurately as possible.” In both the 2005 and 2008 editions NCAA Football, EA features a player that highly resembles/share the same traits as the plaintiff Samuel Keller. Not wanting his likeness to be used in these video games Samuel Keller, former college football quarterback

Is EA protected under the First Amendment with regards to the anti-SLAPP motion?

Decision: The Appellate Court upheld the decision of the District Court, with one dissenting judge, and concluded that EA was in fact not protected under the First Amendment and in turn denied their anti-SLAPP motion. The court found that EA had no defense after failing to meet the requirements of the “transformative use” test, the Rogers test, the “public interest” test, and the public affairs exemption that they claimed to be protected under. The defendant/appellate, EA was responsible for any

Overall I think that the court decision was just, when looking at the how the First Amendment protects game developers in regards to the anti-SLAAP statute it would not have made sense for the court to side with EA. The fact that EA could not meet the requirements of the transformative use test is already a red flag that they are blatantly using Keller’s likeness in their video games. After comparing both the majority and dissenting opinions, I think the majority opinion is more just. I disagree with the dissenting judge’s opinion that “When EA's NCAA Football video game series is examined carefully, and put in proper context the creative and transformative elements of the games predominate over the commercial use of the likenesses of the athletes within the games.” I think this is an unjust and dangerous way to view this situation, the dissenting judge is almost completely ignoring the fact that the NCAA Football game series is marketed as a game where you can play as college football teams and their respective players. The main law that served the court in this case was the anti-SLAPP statute, it provided the court a way to effectively evaluate EA’s defense and come to a just decision, it also helped ensure that both the plaintiff and the defendant were given a chance to prove their