No. 12-15737
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL E. DAVIS, aka Tony Davis, et al.,
Plaintiffs-Appellees,
v.
ELECTRONIC ARTS INC.,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
The Honorable Richard Seeborg
Case No. 10-cv-03328-RS

BRIEF OF AMICI CURIAE 27 INTELLECTUAL PROPERTY AND
CONSTITUTIONAL LAW PROFESSORS IN SUPPORT OF
DEFENDANT-APPELLANT’S
PETITION FOR REHEARING EN BANC
Jennifer E. Rothman
Loyola Law School
919 Albany St.
Los Angeles, CA 90015
(213) 736-2776
jennifer.rothman@lls.edu

Eugene Volokh
UCLA School of Law
405 Hilgard Ave.
Los Angeles, CA 90095
(310) 206-3926
volokh@law.ucla.edu

Attorneys for Amici Curiae

 TABLE OF CONTENTS
TABLE OF CONTENTS............................................................................ i
TABLE OF AUTHORITIES ..................................................................... ii
INTEREST OF AMICI CURIAE .............................................................. 1
SUMMARY OF ARGUMENT .................................................................. 2
ARGUMENT ............................................................................................. 5
I.

Video Games That Refer to Real People Are Fully Protected
by the First Amendment...............................................................5
A. The Panel Decision and the Keller Majority Decision
Jeopardize a Wide Range of Films, Books, and Other
Works ......................................................................................5
B. The Video Games in This Case and in Keller Satisfy the
California Supreme Court’s “Transformative Work” Test ..10
C. The En Banc Court Should Independently Determine
the Appropriate First Amendment Analysis for the
Right of Publicity ..................................................................13

II. The First Amendment Analysis Should be Consistent in
Lanham Act and Right of Publicity Cases .................................17
CONCLUSION ....................................................................................... 20

i

 TABLE OF AUTHORITIES
Cases
Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013) ........ 5, 17, 20
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) .......................... 3, 5
C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced
Media, 505 F.3d 818 (8th Cir. 2007) ......................................... 4, 6, 15, 16
Charles v. City of Los Angeles, 697 F.3d 1146 (9th Cir. 2012).................. 13
Comedy III Prods. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001)
..................................................................................................... 10, 11, 12
E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d
1095 (9th Cir. 2008) ................................................................................ 18
ETW Corp. v. Jireh Publ’g, Inc. 332 F.3d 915 (6th Cir. 2003) .................... 6
Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., 953 F.
Supp. 2d 701 (N.D. Miss. 2013) ................................................................ 3
Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001) ......... 16
In re NCAA Student-Athlete Name & Likeness Licensing Litigation
(“Keller v. Electronic Arts”), 724 F.3d 1268 (9th Cir. 2013) ........... passim
Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994) ................................. 6
Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003) ............................ 19
Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) .............................. passim
Sarver v. Hurt Locker LLC, 2011 WL 11574477 (C.D. Cal. 2011).............. 4
ii

 Tyne v. Time Warner Entm’t Co., L.P., 901 So. 2d 802 (Fla. 2005) ........ 4, 6
White v. Samsung Electronics Am., 989 F.2d 1512 (9th Cir. 1993)............ 5
Statutes
Cal. Civ. Code § 3344(d) .............................................................................. 7
Other Sources
Restatement (Third) Unfair Comp. § 47 cmt. c (1995) ............................. 14

iii

 INTEREST OF AMICI CURIAE
Amici are law professors who teach or write about intellectual property or constitutional law (institutional affiliations are listed for identification purposes only):
Jack Balkin
Barton Beebe
Stacey L. Dogan
Gregory Dolin
Eric M. Freedman
Brian L. Frye
William T. Gallagher
Jon M. Garon
Jim Gibson
Eric Goldman
Stacey M. Lantagne
Mark A. Lemley
Raizel Liebeler
Lawrence Lessig
Barry P. McDonald
Tyler Ochoa
Aaron Perzanowski
Lisa P. Ramsey
Martin H. Redish
Betsy Rosenblatt
Jennifer E. Rothman
Steven H. Shiffrin
Christopher Jon Sprigman
Geoffrey R. Stone
Rebecca Tushnet
Eugene Volokh
David Welkowitz

Yale Law School
NYU School of Law
Boston Univ. School of Law
Univ. of Baltimore School of Law
Hofstra Univ. School of Law
Univ. of Kentucky College of Law
Golden Gate Univ. School of Law
Nova Southeastern Univ. Law Center
Univ. of Richmond School of Law
Santa Clara Univ. School of Law
Univ. of Mississippi School of Law
Stanford Law School
John Marshall Law School
Harvard Law School
Pepperdine University School of Law
Santa Clara Univ. School of Law
Case Western Reserve Univ. School of Law
Univ. of San Diego School of Law
Northwestern Univ. School of Law
Whittier Law School
Loyola Law School, Los Angeles
Cornell Univ. School of Law
NYU School of Law
Univ. of Chicago Law School
Georgetown Univ. Law Center
UCLA School of Law
Whittier Law School

1

 Amici are concerned about the danger that unduly broad readings of
the right of publicity, such as the one in this case, pose to the constitutionally secured right of freedom of speech. 1
SUMMARY OF ARGUMENT
The panel decision in this case followed the majority opinion in In re
NCAA Student-Athlete Name & Likeness Licensing Litigation (“Keller v.
Electronic Arts”), 724 F.3d 1268 (9th Cir. 2013) (commonly known as
Keller), which defines this Circuit’s law on the right of publicity and the
First Amendment. No petition for rehearing en banc was filed in Keller,
so this is the first clear opportunity for the entire Circuit to consider
whether Keller is correct.
Keller’s conclusion that references to real players in fantasy sports
video games are not protected by the First Amendment is mistaken, and
dangerously so. The Keller majority begins with the sentence, “Video
games are entitled to the full protections of the First Amendment, . . .
‘[l]ike the protected books, plays, and movies that preceded them[.]’” 724
No party or party’s counsel has authored this brief in whole or in
part, or contributed money to fund preparing or submitting the brief.
All expenses have been paid by UCLA School of Law and Loyola Law
School, Los Angeles. Defendant has consented to the filing of this brief,
but plaintiffs have declined.
1

2

 F.3d at 1270-71 (quoting Brown v. Entm’t Merchs. Ass’n, 131 S. Ct.
2729, 2733 (2011)). It therefore follows that, to the extent video games
may infringe the right of publicity for depicting or referring to real people, so may books, plays, songs, and films.
Thus, under the logic of Keller, the makers of the recent film Selma
might be liable for a host of right of publicity violations unless they got
permission from Coretta Scott King, Andrew Young, John Lewis, Harry
Belafonte, and the heirs of Martin Luther King, Jr., J. Edgar Hoover,
Lyndon Johnson, and others. The Academy Award-winning Forrest
Gump might also have infringed historical figures’ right of publicity unless the filmmakers got permission from the Elvis Presley, John Lennon, and Abbie Hoffman estates. Simon & Garfunkel’s Mrs. Robinson,
which asked “Where have you gone, Joe DiMaggio?,” might have infringed Joe DiMaggio’s right of publicity.
Likewise, the Faulkner estate’s recent lawsuit over the use of Faulkner’s name in Midnight in Paris could have succeeded. See Faulkner
Literary Rights, LLC v. Sony Pictures Classics Inc., 953 F. Supp. 2d 701,
713 (N.D. Miss. 2013) (noting estate’s claim for “commercial misappropriation”—here another label for the right of publicity—and declining
3

 supplemental jurisdiction over claim). Jeffrey Sarver’s lawsuit against
the producers of the movie The Hurt Locker for evoking his identity as a
member of an army bomb squad in Iraq could likewise have succeeded.
See Sarver v. Hurt Locker LLC, 2011 WL 11574477, at *6-*7 (C.D. Cal.
2011) (granting anti-SLAPP motion to strike right of publicity claim),
appeal pending, Nos. 11-56986, 12-55429; see also Tyne v. Time Warner
Entm’t Co., L.P., 901 So. 2d 802 (Fla. 2005) (rejecting similar claim as to
film The Perfect Storm).
Fortunately, the law does not require such results. The Ninth Circuit
is, of course, not bound by a state court’s interpretation of the First
Amendment; but even under the California Supreme Court’s “transformative work” test, all these works, including the fantasy football video games involved in Keller and in this case, are constitutionally protected. Likewise, under the two other First Amendment tests commonly
applied by federal courts to the right of publicity—the Second Circuit’s
test in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), and the Eighth
Circuit’s test in C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball
Advanced Media, 505 F.3d 818 (8th Cir. 2007)—all these works, including the fantasy sports games, are constitutionally protected. And the
4

 logic of this Court’s decision in Brown v. Electronic Arts, Inc., 724 F.3d
1235 (9th Cir. 2013), which holds that such works are protected from
trademark law claims, counsels in favor of the same result in right of
publicity cases.
The conclusion that the First Amendment does not protect depictions
of real people in expressive works, whether in fictional or non-fictional
settings, cannot be right. Yet this is the world that the panel decisions
in Davis and Keller risk creating. Whether to preserve, reverse, or modify the circuit law created by Keller thus merits this Court’s en banc attention—especially since this Court is the “Court of Appeals for the Hollywood Circuit,” White v. Samsung Electronics Am., 989 F.2d 1512, 1521
(9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en
banc), and for the Silicon Valley Circuit as well.
ARGUMENT
I.

Video Games That Refer to Real People Are Fully Protected by the First Amendment
A.

The Panel Decision and the Keller Majority Decision
Jeopardize a Wide Range of Films, Books, and Other
Works

Video games merit full First Amendment protection. Brown v. Entm’t
Merchs. Ass’n, 131 S. Ct. 2729 (2011). Like novels, films, biographies,
5

 and newspapers, video games regularly refer to real people in their accounts of both current and historical events. Such references have long
been thought protected by the First Amendment. See, e.g., C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, 505 F.3d
818 (8th Cir. 2007) (use of athletes’ identities in fantasy sports leagues
protected by First Amendment); ETW Corp. v. Jireh Publ’g, Inc., 332
F.3d 915 (6th Cir. 2003) (use of professional golfer’s likeness in prints
sold for profit protected by First Amendment); Matthews v. Wozencraft,
15 F.3d 432 (5th Cir. 1994) (use of undercover police officer’s identity in
film protected by First Amendment); Rogers v. Grimaldi, 875 F.2d 994
(2d Cir. 1989) (use of Fred Astaire’s and Ginger Rogers’ first names in
movie title protected by First Amendment); cf. Tyne v. Time Warner
Entm’t Co., L.P., 901 So. 2d 802, 808 (Fla. 2005) (concluding that allowing right of publicity claim based on use of events from plaintiff’s life in
film would “raise[] a fundamental constitutional concern”). Indeed, Keller, on which the Davis panel relied, expressly acknowledged that video
games are as protected as these other creative media.
Yet the Keller and Davis decisions erroneously concluded that the
use of athletes’ identities in historically-based expressive video games is
6

 not constitutionally protected.2 Davis, slip op. at 4, 16. The implications
of such holdings jeopardize large classes of works long thought to be robustly protected by the First Amendment. The threat to biographies,
historical fiction, and films based on real people and real events from
these decisions is staggering. As Judge Thomas warned, the logic of the
majority decision in Keller “jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.” Keller, 724 F.3d
at 1290 (Thomas, J., dissenting).
One need only glance at this year’s Academy Award nominees to see
the vast array of real-life stories with depictions of real people, from
Martin Luther King Jr., Coretta Scott King, and J. Edgar Hoover in
Selma, to Stephen Hawking in The Theory of Everything, to Alan Turing in The Imitation Game. 3 And many other purely fictional works

The amici do not take a position on whether the athletes’ identities
were in fact used in the video games, given that neither the images nor
names of the athletes were used.
2

Though some state right of publicity statutes expressly exclude certain classes of works, especially as to claims brought by the heirs of deceased celebrities, other state right of publicity statutes have only limited exceptions, see, e.g., Cal. Civ. Code § 3344(d) (excluding, as to living
people, only “news, public affairs, or sports broadcast or account, or any
political campaign,” and thus allowing the right to cover fiction, songs,
7
3

 nonetheless incorporate real people as characters, or at least use their
names; consider Forrest Gump, Midnight in Paris, Ginger and Fred,
E.L. Doctorow’s novel Ragtime, Steve Martin’s play Picasso at the Lapin
Agile, and many more.4
The Keller majority suggests in a footnote that the decision will not
jeopardize such works. The proper analysis, the majority urges, is that
courts should distinguish works based on “whether a likely purchaser’s
primary motivation is to buy a reproduction of the celebrity, or to buy
the expressive work of that artist.” 724 F.3d at 1279 n.10 (internal quotation marks and citations omitted). And in the context of the Electronic
Arts video game, the majority reasons, “we have emphasized EA’s pri-

and documentaries that do not qualify as “news” or “public affairs” “account[s]”).
Forrest Gump (1994) (includes depictions of Elvis Presley, Richard
Nixon, John Lennon, and Abbie Hoffman, among others); Midnight in
Paris (2011) (includes depictions of F. Scott Fitzgerald, Zelda Fitzgerald, Ernest Hemingway, Gertrude Stein, Pablo Picasso, and Cole Porter, among others); Ginger and Fred (1986) (evokes Ginger Rogers and
Fred Astaire); E.L. Doctorow, Ragtime (1975) (includes Harry Houdini,
Evelyn Nesbit, Jacob Riis, and Emma Goldman, among others); Steven
Martin, Picasso at the Lapin Agile (1993) (features Albert Einstein and
Pablo Picasso and a character who, while not named, is obviously Elvis
Presley).
4

8

 mary emphasis on reproducing reality,” which suggests that such reproductions of reality are especially likely to be unprotected. Id.
But consumers of video games are likely to value “the expressive
work” of the video game manufacturer—the interactive quality of the
game as entertainment—more than “a reproduction of the celebrity.”
See, e.g., Jeff Haynes, NCAA Football 08 Review, IGN (formerly Imagine Game Network) (July 17, 2007), http://www.ign.com/articles/
2007/07/18/ncaa-football-08-review-2?page=1 (reviewing game’s features
without mentioning any specific players’ identities). And consumers of
unauthorized biographies (e.g., Elizabeth Taylor: An Unauthorized Biography or Tom Cruise: An Unauthorized Biography) or docudramas
(say, Gandhi or Malcolm X) may well seek a “primary emphasis on reproducing reality,” and may be much more interested in “the celebrity”
whose story is being told—and the historical facts of the story—than in
any “artist[ic]” quality of the work.
Applying the analysis in the Keller footnote on its own terms, then,
documentaries should be even less protected than video games. Indeed,
the more realistic the documentary, the less protection it should get.

9

 The footnote’s proposed distinction is thus either incorrect, or, at best,
extremely hard to apply in any predictable way.
To avoid stripping constitutional protection from the works we describe—not only video games but films, books, songs, and more—this
Circuit should either (1) interpret the transformative work test to protect the uses of players’ identities in the video games at issue, or (2) discard the transformativeness test in favor of another approach that better protects First Amendment rights.
B.

The Video Games in This Case and in Keller Satisfy the
California Supreme Court’s “Transformative Work” Test

The panel decision in this case and the majority opinion in Keller not
only violate the First Amendment; they are also inconsistent with the
California Supreme Court’s own definition of the limits on California’s
right of publicity laws. Under the logic of Comedy III Prods. v. Gary
Saderup, Inc., 25 Cal. 4th 387 (2001), uses of real people’s identities in a
game should be deemed transformative.
In Comedy III, the California Supreme Court suggested that the key
inquiry is “whether the celebrity likeness is one of the ‘raw materials’
from which an original work is synthesized, or whether the depiction or
imitation of the celebrity is the very sum and substance of the work in
10

 question.” Id. at 406. This focuses not on whether a person’s name or
likeness is itself altered, but on whether the name or likeness is combined with other materials: “whether the work in question adds significant creative elements so as to be transformed into something more than
a mere celebrity likeness or imitation.” Id. at 391 (emphasis added).
The focus is thus on whether the defendant’s entire work consists of
more than just the plaintiff’s identity; indeed, Comedy III used the adjective “transformative” to refer to “work[s]” much more often than it
used it to refer to “use[s].” Compare id. at 404, 407, 408 (at least seven
references to transformative works) with id. at 404 (one reference to
transformative uses). As the California Supreme Court elaborated, “We
ask, in other words, whether a product containing a celebrity’s likeness
is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” Id. (emphasis added). The
question is whether the overall work is transformative in the sense of
containing something beyond the celebrity’s identity, not whether the
particular use of the celebrity’s identity distorts or transforms that
identity.

11

 Indeed, this is why straight-up biographies or docudramas (such as
Selma), fictional works that incorporate a real character (such as Midnight in Paris), or even songs that mention a celebrity’s name (such as
Mrs. Robinson)—all of which use attributes of a person’s identity without parodying or otherwise distorting them—are protected against a
right of publicity claim. As the California Supreme Court noted, “We
emphasize that the transformative elements or creative contributions
that require First Amendment protection are not confined to parody and
can take many forms, from factual reporting to fictionalized portrayal.”
Comedy III Productions, 25 Cal. 4th at 406 (citations omitted). Factual
reporting and fictionalized portrayal “add[] significant creative elements” beyond a celebrity’s identity, id. at 408, even if they deliberately
try not to distort or transform that identity.
And the transformative work test, properly understood, is satisfied
here. As Judge Thomas noted,
The athletic likenesses are but one of the raw materials from
which the broader game is constructed. The work, considered as a
whole, is primarily one of EA’s own expression. The creative and
transformative elements predominate over the commercial use of
likenesses. The marketability and economic value of the game
comes from the creative elements within, not from the pure commercial exploitation of a celebrity image. The game is not a con12

 ventional portrait of a celebrity, but a work consisting of many
creative and transformative elements.
Keller, 724 F.3d at 1286 (Thomas, J., dissenting).
There is no First Amendment justification for forcing creators to alter depictions of real people to meet Keller’s narrow vision of transformative use. Electronic Arts should not have to turn each player into a
fantastical creature to create its fantasy football game. The transformative work test protects the use of real players’ identities in expressive
video games that seek to recreate historical teams and players—just as
it protects the use of such identities in documentaries, fiction, or songs.
C.

The En Banc Court Should Independently Determine the
Appropriate First Amendment Analysis for the Right of
Publicity

This Court, of course, is not bound by the California Supreme Court’s
view of the First Amendment limits on right of publicity law. Indeed,
there are at least two other approaches that may sensibly be used in
right of publicity cases (focusing on cases that do not involve commercial advertising, which continues to be less constitutionally protected,
see Charles v. City of Los Angeles, 697 F.3d 1146, 1151 (9th Cir. 2012)).
1. The Rogers/Restatement Approach. The Second Circuit in
Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), concluded that even an
13

 expressive work’s title—and certainly the work’s content—may include
a person’s identity, unless the use is “‘wholly unrelated’ to the individual [or] used to promote or endorse a collateral commercial product.” Id.
at 1004 (noting the need to “limit the right [of publicity] to accommodate First Amendment concerns”). In Rogers, the Second Circuit upheld
Federico Fellini’s right to use Ginger Rogers’ identity in a fictional work
called Ginger and Fred, a film about two entertainers who patterned
their lives on Ginger Rogers and Fred Astaire.
Rogers’ identity played a much larger role in the film than any particular player’s identity plays in the Electronic Arts games considered
by this Circuit; even so, the Second Circuit held that the use of Rogers’
identity was allowed. The Restatement (Third) of Unfair Competition
has endorsed this test. See Restatement (Third) Unfair Comp. § 47 cmt.
c (1995) (proposing that “entertainment or other creative works” be exempted from all liability for uses of others identities unless a “name or
likeness is used solely to attract attention to a work that is not related
to the identified person”).
The Keller majority distinguished Rogers on the theory that Rogers
only tried to predict state law “in the absence of clear state-law prece14

 dent.” Keller, 724 F.3d at 1281. The Rogers discussion of the right of
publicity, however, expressly stressed that courts must “recogniz[e] the
need to limit the right to accommodate First Amendment concerns” and
a “concern for free expression.” Rogers, 875 F.2d at 1004. The Rogers
court’s analysis is therefore helpful in analyzing the First Amendment
issues.
And given the Keller majority’s acknowledgment that video games
are as protected as films, the Rogers test should apply to video games as
much as to films. If Rogers were applied to the present case, defendants’
use of the players’ identities would be protected, because the use was
relevant to the underlying expressive work and was not “used solely to
attract attention” to an unrelated commercial product.
2. The C.B.C. Approach. In C.B.C. Distrib. & Mktg. v. Major
League Baseball Advanced Media, 505 F.3d 818 (8th Cir. 2007), the
Eighth Circuit concluded that there is a First Amendment right to use
“information . . . readily available in the public domain” even within
fantasy sports games. Id. at 823. Under the C.B.C. test, Electronic Arts’
work would be protected, because all the information about the players
was “readily available in the public domain.”
15

 The Keller panel majority tried to distinguish C.B.C. on the grounds
that the games in C.B.C. “merely ‘incorporate[d] the names along with
performance and biographical data of actual major league baseball
players,’” while NCAA Football “uses virtual likenesses of actual college
football players.” 724 F.3d at 1283 n.12. But the right of publicity covers
names, likenesses, and other attributes of identity equally. Likewise,
the First Amendment equally protects the use of each of these attributes of identity. See, e.g., Gionfriddo v. Major League Baseball, 94 Cal.
App. 4th 400 (2001) (holding that the First Amendment protects the uses of baseball players’ likenesses as well as names in a variety of videos
authorized by Major League Baseball).
Indeed, the proposed distinction provided in Keller would disfavor
not just videogames, but also films, television programs, illustrated
books, and graphic novels—which visually depict real people—relative
to unillustrated books, traditional novels, and songs, which use people’s
names and factual details about their lives. That distinction has no basis either in right of publicity law or in First Amendment law.

16

 II.

The First Amendment Analysis Should be Consistent in
Lanham Act and Right of Publicity Cases
The Keller majority opinion treats the right of publicity as stronger

than trademark law, when it comes to trumping First Amendment
rights. This too merits en banc review.
In Brown v. Electronic Arts, 724 F.3d 1235 (9th Cir. 2013), the same
panel that considered Keller held that the First Amendment protects
fantasy football video games—including the very game involved in Keller—against trademark liability. “Section 43(a) protects the public’s interest in being free from consumer confusion about affiliations and endorsements,” Brown held, “but this protection is limited by the First
Amendment, particularly if the product involved is an expressive work.”
Id. at 1239. “Even if Madden NFL is not the expressive equal of Anna
Karenina or Citizen Kane, the Supreme Court has answered with an
emphatic ‘yes’ when faced with the question of whether video games deserve the same protection as more traditional forms of expression.” Id.
at 1241. “The Rogers test is applicable when First Amendment rights
are at their height—when expressive works are involved—so it is no
surprise that the test puts such emphasis on even the slightest artistic
relevance.” Id. at 1245. Indeed, the Brown panel applied the same Rog17

 ers any-expressive-relevance analysis for trademark law that the Keller
majority rejected for right of publicity law.5 See also E.S.S. Entm’t 2000,
Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1100 (9th Cir. 2008) (using
the same test).
The right of publicity should be no less constitutionally constrained
than trademark law, at least as to speech outside the special context of
commercial advertising. The right of publicity, because it has no likelihood of confusion requirement, is “potentially more expansive than the
Lanham Act,” Rogers, 875 F.2d at 1004. The interests furthered by the
right of publicity are also less significant than those furthered by
trademark law—the right of publicity mainly protects the private interests of celebrities, whereas trademark law protects the interests of the
entire consuming public as well as of trademark holders.
Harmonizing First Amendment defenses to trademark law and right
of publicity law whenever possible is also practically valuable, because
the same use of a person’s identity will often lead to claims being made
The Rogers test primarily considers, for both Lanham Act and right
of publicity claims, whether the use is “artistically relevant.” It then
considers for Lanham Act cases whether the use is “explicitly misleading” and for right of publicity cases whether the use is really a “disguised commercial advertisement.” Rogers, 875 F.2d at 1000, 1004.
5

18

 under both laws. The Second and Sixth Circuits have indeed harmonized trademark law and right of publicity law in this respect. See Rogers, 875 F.2d at 1001, 1004, 1005; Parks v. LaFace Records, 329 F.3d
437, 453, 461 (6th Cir. 2003).
Rogers and Parks conclude that, when a defendant is sued for using a
plaintiff’s identity in an expressive work, the heart of the First Amendment analysis for both trademark and right of publicity claims should
be the expressive relevance of the use to the work. In Rogers the trademark analysis asks whether the use of the plaintiff’s name in a film title “is relevant to the film’s content,” 875 F.2d at 1001. In the right of
publicity discussion, the court asks whether the use is not “wholly unrelated” to the film, id. at 1004.
Similarly, in the trademark discussion in Parks, the court asks
whether the use of a celebrity’s name in a song title is “relevant to the
content [or lyrics] of the song.” 329 F.3d at 453, 456. The right of publicity discussion considers whether the use is not “‘wholly unrelated’ to the
content of the work,” id. at 461 (quoting Rogers).
Thus, if the use is relevant to the underlying expression in the work,
the First Amendment should almost always protect the use (except
19

 when a use explicitly misleads consumers as to origin or sponsorship,
Brown, 724 F.3d at 1239; Rogers, 875 F.2d at 999, which might well
constitute constitutionally unprotected fraud). 6 Adopting this Second
and Sixth Circuit approach can clarify the law for the benefit of video
game makers, film producers, songwriters, and other creators.
CONCLUSION
As the Keller majority acknowledged, references to real people,
whether in novels, plays, songs, books, or video games, are on equal
footing under the First Amendment. When that opinion, and the panel
decision in this case, held that fantasy football video games are constitutionally unprotected against right of publicity claims, a wide range of
speech was put in danger. This Court should rehear the Davis decision
en banc, to clarify this important area of the law and provide creators
the protection that they deserve under the First Amendment.

Again, amici focus here on speech other than commercial advertising, given that commercial advertising receives less robust First
Amendment protection. Amici express no opinion on whether the right
of publicity could apply more broadly to commercial advertising, including speech that, in the words of Rogers, is simply a “disguised commercial advertisement for the sale of goods or services,” 875 F.2d at 1004.
6

20

 Respectfully Submitted,

s/ Jennifer E. Rothman
s/ Eugene Volokh
Attorneys for Amici Curiae
Law Professors

21

 CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 4,177 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface
using Word 2010 in 14-point New Century Schoolbook.
Dated: Jan. 29, 2015
s/ Jennifer E. Rothman
Attorney for Amici Curiae
Law Professors

 CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing Appellant’s
Opening Brief with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit by using the appellate CM/ECF system on
Jan. 29, 2015.
All participants in the case are registered CM/ECF users, and will be
served by the appellate CM/ECF system.
Dated: Jan. 29, 2015
s/ Eugene Volokh
Attorney for Amici Curiae
Law Professors