Keller v. Electronic Arts, Inc.

724 F.3d 1268 (9th Cir. 2013)


Keller (P) was the starting quarterback for Arizona State University in 2005 before he transferred to the University of Nebraska, where he played during the 2007 season. Electronic (D) is the producer of the NCAA Football series of video games, which allow users to control avatars representing college football players as those avatars participate in simulated games. D sought to replicate each school's entire team as accurately as possible. Each avatar had the player's actual jersey number and virtually identical height, weight, build, skin tone, hair color, and home state. D omits the players' names on their jerseys and assigns each player a hometown that is different from the actual player's hometown. D does allow images from the game containing athletes' real names to be posted on its website by users. Users can alter reality by entering 'Dynasty' mode, or 'Campus Legend' mode. Objecting to this use of his likeness, P filed a putative class-action complaint for violation of publicity rights. D moved to strike the complaint as a strategic lawsuit against public participation ('SLAPP') under California's anti-SLAPP statute. The district court denied the motion. D appealed.