No. 09-56675.

724 F.3d 1235 (2013)

James "Jim" BROWN, Plaintiff-Appellant, v. ELECTRONIC ARTS, INC., a Delaware corporation, Defendant-Appellee.

United States Court of Appeals, Ninth Circuit.

Submission Vacated February 18, 2011.

Argued and Resubmitted July 13, 2012.

Filed July 31, 2013.

Attorney(s) appearing for the Case

Kelli L. Sager (argued), Alonzo Wickers IV , Anna R. Zusman , Lisa J. Kohn and Karen A. Henry , Davis Wright Tremaine LLP, Los Angeles, CA; Robert A. Van Nest , Steven A. Hirsch and R. James Slaughter , Keker & Van Nest, LLP, San Francisco, CA, for appellee.

Ronald S. Katz (argued) and Ryan S. Hilbert , Manatt, Phelps & Phillips, LLP, Palo Alto, CA; Mark S. Lee , Craig J. De Recat and Benjamin G. Shatz , Manatt, Phelps & Phillips, LLP, Los Angeles, CA, for appellant.

Nathan Siegel and Lee Levine , Levine Sullivan Koch & Schulz, L.L.P., Washington, D.C., for amici curiae Advance Publications, A & E Television Networks, Allied Daily Newspapers of Washington, Association of American Publishers, Activision, California Newspaper Publishers Association, Capcom USA, Comic Book Legal Defense Fund, E! Entertainment Television, ESPN, First Amendment Coalition, First Amendment Project, Freedom Communications, The Gannett Company, Gawker Media, Hybrid Films, ITV Studios, Konami Digital Entertainment, The Los Angeles Times, The McClatchy Company, Namco Bandai Games America, Original Productions, The Press-Enterprise Company, Radio Television Digital News Association, Sirens Media, Take Two Interactive Software, Thq, Viacom, The Washington Newspaper Publishers Association, and Wenner Media.*

Before: SIDNEY R. THOMAS and JAY S. BYBEE, Circuit Judges, and GORDON J. QUIST, Senior District Judge.


BYBEE, Circuit Judge:

Plaintiff — Appellant James "Jim" Brown alleges that Defendant — Appellee Electronic Arts, Inc. ("EA") has violated § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), through the use of Brown's likeness in EA's Madden NFL series of football video games. In relevant part, § 43(a) provides for a civil cause of action against:

[a]ny person who...


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