Supreme Court declines to review 1st amendment dispute involving digital rights in video games

On Monday, the Supreme Court declined to hear an appeal by Electronic Arts’ (EA) in a case that balances right-to-publicity claims against the right to modern technological portrayals of individuals (in this case professional athletes).

EA was sued by professional football players seeking compensation for EA’s highly realistic portrayal of the players in Madden NFL, one of the world’s most popular video games. The players claimed EA had infringed their “right to publicity.” EA asserted that it had a First Amendment right to use a professional player’s likeness, without recompense or player consent, because it was an artistic portrayal. The global software company claimed it was being penalized for making a game that is “too realistic”.

However, the 9th Circuit Court of Appeals, in its ruling against EA, stated that: “EA’s use of the former players’ likenesses is not incidental because it is central to EA’s main commercial purpose—to create a realistic virtual simulation of football games involving current and former NFL teams.” (ARS Technica, March 21, 2016). The Supreme Court’s March 21 order declining review means that the 9th Circuit’s decision stands.

The case has garnered much public attention from digital rights activists and academics alike.