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Section 43(a) of the Lanham Act, 15 U.S.C.S. § 1125(a), protects the public's interest in being free from consumer confusion about affiliations and endorsements, but this protection is limited by the First Amendment, particularly if the product involved is an expressive work. Under the Rogers test, § 43(a) of the Lanham Act will not be applied to expressive works unless the use of the trademark or other identifying material has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the use of trademark or other identifying material explicitly misleads as to the source or the content of the work.
Plaintiff—Appellant James "Jim" Brown was widely regarded as one of the best professional football players of all time. Defendant—Appellee Electronic Arts, Inc. ("EA") was a manufacturer, distributor and seller of video games and has produced the Madden NFL series of football video games since 1989. The Madden NFL series allows users of the games to control avatars representing professional football players as those avatars participate in simulated NFL games. Brown asserted that EA has used his likeness in several versions of the game dating back at least to 2001 but that he has never been compensated. Brown brought suit in the United States District Court for the Central District of California, claiming that EA's use of his likeness in the Madden NFL games violated § 43(a) of the Lanham Act. Brown also brought claims under California law for invasion of privacy and unfair and unlawful business practices. EA filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the district court applied the Rogers test and dismissed Brown's Lanham Act claim. The district court declined to exercise supplemental jurisdiction over the state-law claims. Brown filed an appeal of the dismissal of his Lanham Act claim.
Did EA’S use of Brown’s likeness in a series of football video games violate § 43(a) of the Lanham Act?
The Court held that the use of a retired professional football player's likeness in a series of football video games did not violate § 43(a) of the Lanham Act, 15 U.S.C.S. § 1125(a), because the video games were expressive works that were entitled to protection under the First Amendment, the use of the football player's likeness was artistically relevant to video games that aimed to recreate professional football games, there were no facts showing that the manufacturer of the video games explicitly misled consumers as to the football player's involvement with the games, and, thus, the public interest in free expression outweighed the public interest in avoiding consumer confusion.