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The Intellectual Property StrategistKickerFeaturesTopicsLitigationTechnology Media and TelecomSectionsNewsLJN Newsletters

Maddeningly Mismated Matches

By Jonathan Moskin

In paired opinions rendered the same day (July 31) by the same judge (Jay Bybee), the Ninth Circuit reached seemingly directly contrary conclusions in virtually identical cases concerning the balancing of intellectual property rights and First Amendment interests. In one of the two decisions, Brown v Elec. Arts, Inc., 107 U.S.P.Q.2d 1688 (9th Cir. July 31, 2013), the court upheld the dismissal on First Amendment grounds of a Lanham Act false endorsement claim by football star, Jim Brown, who objected to use of his likeness in Electronic Arts' “Madden NFL” video game. In the other, In re NCAA Student-Athlete Name & Likeness Licensing Litig., 107 U.S.P.Q.2d 1629 (9th Cir. July 31, 2013), the same court sustained the district court's refusal to dismiss a putative right of publicity class action claim by former college football star, Samuel Keller, whose likeness was used in another Electronic Arts video game, “NCAA Football.” Here, the court held that Electronic Arts had no viable First Amendment defense.

The Rogers Test

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