Brown v. Electronic Arts, Inc.

Former Cleveland Browns star James Brown (plaintiff) was depicted, unnamed but clearly identifiable by team, skill set, and likeness, as a playable historical avatar in Electronic Arts's (defendant) Madden NFL video game, which licensed current players' names and likenesses from the NFL Players Association but did not compensate Brown for using his likeness as a featured past player. Brown sued for trademark infringement under Lanham Act § 43(a); the district court dismissed for failure to state a claim, finding the use was protected expressive speech, and Brown appealed.