.3Keller filed a putative class-action complaint assertingthat Electronic Arts (EA) violated his right of publicity under California Civil Code § 3344 and California common law byusing his likeness as part of the
video series.The panel held that under the “transformative use” testdeveloped by the California Supreme Court, EA’s use did notqualify for First Amendment protection as a matter of law because it literally recreated Keller in the very setting inwhich he had achieved renown. The panel rejected EA’ssuggestion to import the balancing test set forth by theSecond Circuit in
, 875 F.2d 994 (2nd Cir.1989), which had been created to evaluate Lanham Actclaims, into the right-of-publicity arena. The panel further held that the state-law defenses for the reporting of factualinformation did not protect EA’s use.Dissenting, Judge Thomas stated that because the creativeand transformative elements of EA’s
videogame series predominated over the commercial use of theathletes’ likenesses, the First Amendment protects EA fromliability.
Kelli L. Sager (argued), Alonzo Wickers IV, Karen A. Henry,Lisa J. Kohn and Anna R. Buono, Davis Wright TremaineLLP, Los Angeles, California; Robert A. Van Nest, Steven A.Hirsch and R. James Slaughter, Keker & Van Nest, LLP, SanFrancisco, California, for Defendant-Appellant.