EA next contends
Madden NFL is entitled to First Amendment protection under the test formulated by the Second Circuit in
Rogers v. Grimaldi, 875 F.2d 994 (2d Cir.1989).
Rogers held that a literary title does not violate the Lanham Act “unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.”
Id. at 999. In
Keller, we rejected EA's argument that the
Rogers test should be extended to right-of-publicity claims.
See 724 F.3d at 1279–82. We explained that the
Rogers test “was designed to protect consumers from the risk of consumer confusion—the hallmark element of a Lanham Act claim.”
Id. at 1280. In contrast, the right of publicity “does not primarily seek to prevent consumer confusion.”
Id. “Rather, it primarily ‘protects a form of intellectual property [in one's person] that society deems to have some social utility.’ ”
Id. (alteration in original) (quoting
Comedy III, 106 Cal.Rptr.2d 126, 21 P.3d at 804). Thus, the
Rogers test does not apply to the plaintiffs' right-of-publicity claims.