Two recent 9th Circuit opinions — both with EA sports as a defendant to the litigation — ruled opposite ways with regards to the right of privacy concerns at issue. The overarching issue in both cases is the balance between trademark and similar rights on one hand and First Amendment rights on the other.
On July 31, the 9th U.S. Circuit Court of Appeals affirmed the dismissal of a case brought by former Cleveland Browns legend Jim Brown against EA in Brown v. Electronic Arts Inc., No. 09-56675. The 9th Circuit cited to another opinion involving EA released the same day, Keller v. Electronic. Arts Inc., No 10-15387. In Keller — a former Division I quarterback at Arizona State University and, later, the University of Nebraska — brought a class action against EA for (among other things) allegedly violating his right of publicity under California law.
In coming to different conclusions, Court applied the so-called “Rogers test” in the Brown case and the “transformative-use” test in the Keller case. Read more about why in the full article published in the Akron Legal News.
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