Right of Publicity

Davis v. Electronic Arts: Retired NFL Players, the Incidental-Use Defense, and the Limits of First Amendment Cover

The Ninth Circuit held that EA's unlicensed use of thousands of former NFL players on Madden's historic teams was central, not incidental, and that Keller foreclosed EA's transformative-use, public-interest, and Rogers defenses.

August 25, 2025
An empty professional football locker room with jerseys hanging in stalls
Thousands of retired players appeared on Madden's historic teams without a license or a name on the back. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

Davis v. Electronic Arts, Inc., No. 12-15737 (9th Cir. Jan. 6, 2015), is the decision that extended the Ninth Circuit’s video-game likeness jurisprudence from a single college quarterback to the entire population of retired professionals. Michael Davis, Vince Ferragamo, and Billy Joe DuPree sued Electronic Arts on behalf of a putative class of roughly 6,000 former NFL players whose attributes appeared, unnamed, on more than 100 “historic” and “all-time” teams across editions of Madden NFL. Each virtual player was identified by position, years in the league, height, weight, skin tone, and relative skill — every recognizable trait except the name. EA moved to strike under California’s anti-SLAPP statute, raising the full battery of First Amendment defenses it had deployed against Sam Keller. The U.S. District Court for the Northern District of California (No. 3:10-cv-03328-RS) denied the motion, and the Ninth Circuit affirmed in an opinion by Judge Fisher, joined by Judges Reinhardt and Berzon. The Supreme Court later denied certiorari, leaving the ruling intact.

At a glance

  • Case: Davis v. Electronic Arts, Inc., No. 12-15737 (9th Cir. 2015)
  • Court / panel: U.S. Court of Appeals for the Ninth Circuit; Fisher, J. (author), Reinhardt, J., Berzon, J.
  • Decided: January 6, 2015
  • District court: N.D. Cal., No. 3:10-cv-03328-RS
  • Posture: Appeal from denial of EA’s anti-SLAPP motion to strike under Cal. Code Civ. Proc. § 425.16
  • Governing law: California right of publicity (statutory and common law)
  • Holding: EA failed to show a probability of prevailing on its defenses; its transformative-use, public-interest, and Rogers defenses were foreclosed by Keller, and the use was central rather than incidental
  • Subsequent history: Certiorari denied (2016)

Davis matters precisely because it tested whether Keller was a one-off about a marquee athlete or a durable rule. EA’s central argument was, in effect, that the sheer scale and anonymity of its appropriation — thousands of unnamed legacy players blended into rosters — changed the analysis. The panel disagreed on every front.

Keller forecloses the familiar defenses

The panel made short work of three of EA’s defenses by treating Keller as controlling precedent. On transformative use, Keller had already held that EA’s realistic depiction of identifiable football players, performing their sport in its natural setting, was not transformative as a matter of law. The historic-team avatars were no different: they reproduced the players’ recognizable attributes in the context that made them famous. EA could not relitigate the question simply because the depicted athletes were retired rather than current.

On the public-interest and public-affairs defenses, Keller again controlled. Those defenses protect the dissemination of information and reporting on matters of public concern; they do not license the comprehensive commercial reproduction of athletes’ likenesses inside a for-profit game. And on Rogers v. Grimaldi, the panel reaffirmed Keller’s holding that the trademark-derived artistic-relevance test does not govern a California right-of-publicity claim, whose gravamen is appropriation of identity rather than consumer confusion. The companion Brown line of authority, which applied Rogers to a Lanham Act claim, was inapposite because Davis and his co-plaintiffs sued in publicity, not under the Lanham Act.

The cumulative effect was to confirm that Keller established a framework, not a fact-bound exception. Once a defendant realistically depicts identifiable athletes in the setting of their fame, the standard expressive-work defenses do not defeat a publicity claim at the threshold.

The incidental-use defense and the centrality of the likenesses

The one genuinely new issue in Davis was EA’s incidental-use defense. The incidental-use doctrine shields trivial or fleeting appearances of a person’s identity that have no meaningful commercial value to the defendant — the unnamed face in a crowd scene, the passerby in a documentary. EA argued that, given thousands of legacy players spread across scores of teams, any individual player’s contribution to the product was negligible, and the use of each was therefore incidental.

The panel rejected the argument, articulating a multi-factor approach to incidental use that asked, among other things, whether the use had unique value to the defendant, how prominent and central it was to the work, and whether it was connected to the commercial purpose of the product. Measured against those factors, EA’s use failed: the realistic depiction of former players was not a trivial garnish but central to EA’s main commercial purpose — creating an authentic football simulation that lets players field historic and current teams alike. The court’s key move was to reject the aggregation logic. EA could not dilute the significance of each player’s likeness by pointing to the multitude of likenesses it had appropriated. That thousands of players were used did not make any one use incidental; if anything, the comprehensive realism was the selling point. The volume of the appropriation was a feature of EA’s commercial strategy, not a defense to it.

That holding has teeth beyond video games. It forecloses a tempting argument for any platform that ingests vast quantities of identities — that each individual contribution is too small to matter. Davis says scale is not a shield: a use that is collectively central to a product’s value cannot be recharacterized as individually incidental.

Anti-SLAPP, probability of prevailing, and procedural posture

Like Keller, Davis arrived through California’s anti-SLAPP machinery. EA conceded that the plaintiffs’ claims arose from protected activity, shifting the burden to the plaintiffs to show a probability of prevailing on the merits. The plaintiffs cleared that bar because EA could not establish that any of its defenses defeated the claim as a matter of law. The procedural frame is worth emphasizing: the decision did not hold that the players had won, only that their claims were legally viable enough to proceed past a motion to strike. But in practice, the foreclosure of EA’s First Amendment defenses left the company with little path to victory, and the case resolved through settlement after the Supreme Court declined review.

Open questions

  • Does Davis’s rejection of aggregation logic apply to generative-AI training and output, where models ingest millions of identities and any single contribution is statistically minute?
  • How do courts weigh the incidental-use factors when a likeness is recognizable in the aggregate (a “type” of player) but not individually named or pictured?
  • Would the analysis change after Jack Daniel’s Properties v. VIP Products, 599 U.S. 140 (2023), narrowed Rogers, given that Davis declined to apply Rogers at all to the publicity claim?
  • Where state publicity statutes contain express newsworthiness or public-affairs exemptions, how far can a defendant stretch “public interest” before it collapses into pure commercial use?

Implications

  • Scale is not a shield. A defendant cannot defeat publicity claims by appropriating so many identities that each one looks individually trivial; courts assess whether the use is collectively central to the product’s value.
  • Keller is a framework, not an exception. Retired, anonymous, or aggregated athletes receive the same transformative-use analysis as a named star.
  • Incidental use is narrow. The doctrine protects truly fleeting, value-less appearances — not a category of depiction that drives consumer demand.
  • Anti-SLAPP cuts both ways. The statute lets defendants test claims early, but where First Amendment defenses fail as a matter of law, it accelerates the plaintiff toward the merits.
  • A warning for data-hungry platforms. The rejection of aggregation logic is directly relevant to any business model premised on ingesting large volumes of personal identity.

Frequently asked questions

What was new in Davis compared to Keller? The incidental-use defense. Keller had already resolved transformative use, public interest, and Rogers for EA’s football games, and Davis applied those holdings to retired players. The fresh question was whether using thousands of unnamed legacy players made each individual use too trivial to be actionable. The court said no, holding the uses were central to EA’s commercial purpose.

Why didn’t the sheer number of players help EA? The panel refused to let EA aggregate its way out of liability. Using many likenesses does not make any one use incidental; the comprehensive realism was precisely what made the product valuable. Volume was part of EA’s commercial strategy, not a defense to it.

Did the players ultimately win? The Ninth Circuit’s ruling affirmed denial of EA’s motion to strike, meaning the claims could proceed — it was not a final merits judgment. The Supreme Court denied certiorari, and the litigation resolved by settlement. The lasting significance lies in the doctrine: the decision confirmed that Keller’s framework governs and that incidental use will not rescue a central commercial appropriation.

Authorities and sources