The Third Circuit held that EA's photorealistic use of a college quarterback's avatar in NCAA Football was not transformative enough to defeat his right of publicity — adopting the transformative-use test as the circuit's framework for likeness-in-media disputes.
The Ninth Circuit held that EA's unlicensed use of thousands of former NFL players on Madden's historic teams was central, not incidental, and that Keller foreclosed EA's transformative-use, public-interest, and Rogers defenses.
The Ninth Circuit held that a Hall of Famer's Lanham Act false-endorsement claim over his avatar in Madden NFL was governed by the Rogers artistic-relevance test — and lost — even as a right-of-publicity claim on similar facts survived.
On materially identical facts to Hart, the Ninth Circuit held that EA's photorealistic depiction of college football players in NCAA Football flunked California's transformative-use test and enjoyed no First Amendment shield.
