Second Down: Ninth Circuit Follows Third Circuit’s Lead in Keller v. Electronic Arts, Inc.

Following the Third Circuit's lead, the Ninth Circuit's recent decision in Keller v. Electronic Arts, Inc. (No. 10-15387) further supports and strengthens the publicity rights of athletes and performers, particularly in new media such as video games.  Like the Third Circuit before it in Hart v. Electronic Arts, Inc. (No. 11-3750), the Ninth Circuit applied the Transformative Use test to conclude that EA's college football videogame did not sufficiently transform Plaintiff/Respondent's likeness to escape his right of publicity claim.  

This Stroock Special Bulletin examines the decision in Keller v. Electronic Arts, Inc., and its implications for the superiority of privacy rights over First Amendment rights in the right-of-publicity context.