A district court in the Northern District of California granted partial summary judgment to a video game manufacturer in a suit alleging that it violated a California statute prohibiting the unauthorized use of a person's name, voice, signature, photograph, or likeness for the purposes of advertising.
Former NFL players brought the case as a putative class action against Electronic Arts (EA), alleging EA had misappropriated their likenesses for inclusion in the Madden NFL series of video games in violation of California Civil Code § 3344 (§ 3344). In addition to their claims under § 3344, the former players also brought a claim based on California's common law right of privacy.
EA sought summary judgment on the plaintiffs' § 3344 claims on the ground that EA had not used the players' likenesses, as defined in § 3344. According to § 3344, "likeness" is defined as a visual image of a person other than a photograph. The plaintiffs argued that because the games included "avatars" of certain players that could be identified by contextual information such as team, position, and physical and biographical characteristics, EA had misappropriated their likenesses. The court ruled that the additional contextual information could not be taken into account when determining whether the "avatars" could be readily identified as specific NFL players, and therefore ruled that EA had not violated § 3344. The court also stated that the NFL players might have a credible common law right of privacy claim, which would not require the players to show that the "avatars" included in the games were "readily identifiable" as the former players solely based on visual images.
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