United States Ninth Circuit

In a putative class-action alleging that defendant violated former college football player-plaintiffs' rights of publicity under California Civil Code § 3344 and California common law by using his likeness as part of the NCAA Football video series, the district court's denial of defendant's anti-SLAPP motion to strike and holding that defendant had no First Amendment defense against the right-of-publicity claims of plaintiffs is affirmed, where: 1) under the "transformative use" test developed by the California Supreme Court, defendant's use did not qualify for First Amendment protection as a matter of law because it literally recreated plaintiff in the very setting in which he had achieved renown; 2) the Rogers test which had been created to evaluate Lanham Act claims does not apply in the right-of-publicity arena; and 3) the state-law defenses for the reporting of factual information did not protect defendant's use.

Appellate Information

• Decided 07/31/2013
• Published 07/31/2013

Judges

• BYBEE,

Court

• United States Ninth Circuit

Counsel