Today the U.S. Supreme Court refused to consider whether Electronic Arts Inc. has a First Amendment right to use the likenesses of retired players in its Madden NFL video games.
J. Michael Keyes is an intellectual property partner at the international law firm Dorsey & Whitney with extensive trial and litigation experience in cases involving trademarks, copyrights, unfair competition and false advertising. He has tried several cases in federal courts across the United States. Recently, Mike and his team obtained a final judgment and permanent injunction in the U.S. District Court for the Southern District of Florida on behalf of Rovio Entertainment, Ltd., the creator of Angry Birds®. He’s been following this case closely and of it says,
“The Court is not going to weigh in on this right of publicity case involving the use of former NFL football players’ “personas” in the wildly popular Madden NFL game series. This means that the 9th Circuit decision stands and that the former players’ claims get a fresh set of downs. On a broader level, this means that the lower courts still have little guidance as to what the proper standard is on how the First Amendment interacts with state law claims. As a group of law professors persuasively (albeit unsuccessfully) argued to the Court, there are multiple different tests used by lower federal courts and Davis would have been a perfect vehicle for the Court to provide much needed guidance,” Keyes says.
