In 1890, Samuel Warren and Louis Brandies called for tort law to recognize one’s “right to be let alone”, or one’s right to privacy, as “the term ‘property’ has grown to comprise every form of possession – intangible, as well as tangible.” Since Warren and Brandies, tort law has grown to recognize violations of the right to privacy when there is an intrusion upon seclusion, a public disclosure of a private fact, depiction of another in a false light, and appropriation of another’s name or likeness for commercial purposes. The right to control one’s name and likeness for commercial purposes is known as the right of publicity. Celebrities including Johnny Carson, Vanna White, and Elvis Presley’s estate have famously defended this valuable property right. A person’s right of publicity is violated when (1) another uses the person’s identity; (2) the appropriation of the person’s identity is to the advantage of another; (3) there is a lack of consent; and (4) there is a resulting injury.
The right of publicity is rooted in state common law, but is closely associated with, and generally alleged alongside, a claim under section 43(a) of the Lanham Act based on a theory of false endorsement. Section 43(a) of the Lanham Act allows for a claim against:
any person who [uses]…in connection with any goods or services…any word, term, name, symbol, or device…which is likely to cause confusion…mistake…or deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.
When a celebrity brings a false endorsement suit under 43(a) the celebrity persona functions as the mark. Recently, district courts have divided on balancing the First Amendment rights of video game developers and athletes’ rights as grated under the Lanham Act.
In the Central District of California case Brown v. Electronic Arts, Inc., Jim Brown, a former NFL player for the Cleveland Browns, alleged that EA misappropriated his name, identity, and likeness in their Madden NFL video game. The character in the video game that Mr. Brown complains of is anonymous, and wears a different jersey number, but has nearly identical statistics. EA maintained that it did not use Mr. Brown’s likeness, and argues the First Amendment provides a defense to the use as the video games is a form of expression. The district court agreed that the First Amendment protected the video game’s purported use of Mr. Brown’s likeness where the use is relevant to the underlying work and not likely to mislead consumers to believe that Mr. Brown endorsed the game.
In the Northern District of California case Keller v. Electronic Arts, Inc., Samuel Keller, a former NCAA football player, alleged that EA violated his state law right of publicity by using his likeness in their NCAA Football video game. EA again argued the First Amendment provided a defense for the use, however the district court disagreed finding the video game was not transformative where the player in the game wore the same jersey number, had the same height and weight, and came for the same state.
In the District of New Jersey case Hart v. Electronic Arts, Inc., Ryan Hart, a NCAA Football player, alleged that EA violated his state law right of publicity by depicting a player using replications from his team photo and as hailing from Florida.  EA again argued that the video game is an expressive work protected by the First Amendment. The district court agreed, finding that the use of Mr. Hart’s likeness was not for commercial purposes since by the time the photo was seen the commercial transaction had already taken place. Further that the game was transformative since the players likeness is a virtual building block, where the game player has the ability to control the player and change the team’s roster.
While the split between the California districts may be a matter of federal versus state law, and the federal courts divide may be an issue of California versus New Jersey law, the decisions raise the questions of whether the First Amendment protects videos games who use athletes likeness do not violate the athletes’ rights if the use is relevant to the underlying work or if it is transformative. Also, if the New Jersey district court is correct, does this mean that EA sports can possible use professional athletes likenesses in their game more without paying licensing fees. Perhaps on appeal the Ninth and Third circuits will recover from the fumble and finish the play with a standard that maintains the value of the right of publicity.
 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193 (1890).
 See Restat 2d of Torts, § 652A
 See 62A Am Jur 2d Privacy § 17
 Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (1983).
 White v. Samsung Electronics Am., 971 F.2d 1395 (9th Cir. 1992).
 Estate of Presley v. Russen, 513 F.Supp 1339 (1981).
 971 F.2d at 1397.
 15 U.S.C.§ 1125(a).
 971 F.2d at 1399-1400.
 “District courts divided over use of football players in video games” Lexology.com http://www.lexology.com/library/detail.aspx?g=7107a997-2824-47ff-b4de-3b913b563996&l=7GWQ7BR
 Brown v. Electronic Arts, Inc., 2009 U.S. Dist. LEXIS 131387 (C.D. Cal. Sept. 23, 2009).
 Keller v. Electronic Arts, Inc., 2010 U.S. Dist. LEXIS 10719, 94 U.S.P.Q.2D (BNA) 1130, 38 Media L. Rep. 1353 (N.D. Cal. Feb. 8, 2010)
 Hart v. Electronic Arts, Inc., 808 F. Supp. 2d 757, (D.N.J. 2011).
 Id. at 771.
 Id. at 784.