Former Football Players Want To Be Paid For The Use Of Their Likenesses In Video Games.

Both the trial and appeals courts were called upon to “balance the right of publicity of former professional football players against [a video game company’s] First Amendment right to use their likenesses in its Madden NFL series of video games.” Madden NFL allows video game users to play virtual football games between National Football League [NFL] teams by controlling virtual players, or avatars. Each annual version of Madden NFL includes all current players for all 32 NFL teams, along with accurate player names, team logos, colors and uniforms. The video game company pays the NFL’s official players’ association an annual licensing fee in the millions of dollars to use current likenesses. But plaintiffs here are former professional football players, 6,000 in total including Tony Davis and Billy Joe Dupree, whose likenesses are used in the video game company’s “historic teams” games. In affirming the trial court’s denial of the video game company’s motion to dismiss, the Ninth Circuit noted the video game company acknowledged the substantial commercial value of using virtual avatars of current players, and did not provide a persuasive reason why the same does not apply to former players. The appeals court concluded no First Amendment protection was in order. (Davis v. Elec. Arts, Inc. (Ninth Cir.; January 6, 2015) 775 F.3d 1172.)