On July 31, 2013, the US Court of Appeals for the Ninth Circuit issued opinions in two cases involving claims brought by former football players against video game developer Electronic Arts, Inc. (EA) concerning its use of their likenesses in its football video games. In Keller v. Electronic Arts, Inc., in a split decision, the majority held that EA had no First Amendment defense against the right-of-publicity claims of Samuel Keller, a former college football player, for use of his likeness as part of EA's NCAA Football video game series. In Brown v. Electronic Arts, Inc., the same Ninth Circuit panel affirmed the dismissal of retired professional football player Jim Brown's action alleging that EA violated Section 43 of the Lanham Act through the use of his likeness in its Madden NFL video game series.

In Keller, the court held that under the "transformative use" test developed by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc., EA's use did not qualify for First Amendment protection as a matter of law because it literally recreated Keller in the very setting in which he became famous. The panel rejected EA's suggestion to import the balancing test set out by the US Court of Appeals for the Second Circuit in Rogers v. Grimaldi to evaluate Lanham Act claims, into the right of publicity arena. In another recent case raising substantially identical issues before the US Court of Appeals for the Third Circuit, the Third Circuit similarly found that users' ability to alter the virtual player's attributes was not sufficiently transformative (see Legal Update, First Amendment Does Not Shield Video Game from Right of Publicity Claims: Third Circuit). Dissenting, Judge Thomas stated that because the creative and transformative elements of EA's NCAA video game series predominated over the commercial use of the athletes' likenesses, the First Amendment protects EA from liability.

In Brown, the panel held that the district court correctly applied the Rogers test for balancing trademark and similar rights with First Amendment rights. Applying Rogers, the Ninth Circuit concluded that Brown's likeness was artistically relevant to the games and no facts were alleged to support the claim that EA explicitly misled consumers on Brown's involvement with the games. The court noted that, in this case, the public interest in free expression outweighed the public interest in avoiding consuming confusion. In Brown, state right of publicity claims were not before the appellate court.