Use Of Likeness Of College Athletes Not Protected By First Amendment.

Football players Samuel Keller, Edward O’Bannon, Jr., Byron Bishop, Michael Anderson, Danny Wimprine, Ishmael Thrower, Craig Newsome, Damien Rhodes and Samuel Jacobson brought a class action against a video game company asserting the company violated their right of publicity under Civil Code section 3344 and California common law. The video company moved to strike plaintiffs’ complaint under the anti-SLAPP statute [Code of Civil Procedure section 425.16], and the federal district court denied the motion. Applying California’s “transformative use” test, developed by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, [21 P.3d 797, 106 Cal.Rptr.2d 126], the Ninth Circuit affirmed, stating the “use of the likenesses of college athletes like Samuel Keller in its video games is not, as a matter of law, protected by the First Amendment. We reject [defendant’s] suggestion to import the Rogers test into the right-of-publicity arena, and conclude that state law defenses for the reporting of information do not protect [defendant’s] use.” In re NCAA Student-Athlete Name & Likeness Licensing Litigation Ninth Cir.; July 31, 2013) (Case No. 10-15387).