Federal Appellate Court Permits College Football Player’s Right of Publicity Lawsuit Against Video Game

Hart v. Electronic Arts, Inc., (3d Cir. May 21, 2013)  the appellate court allowed  former Rutgers quarterback Ryan Hart to proceed with a right of publicity claim against Electronic Arts. The opinion: Hart v. Electronic Arts The video game manufacturer’s game NCAA Football depicts hundreds of college football players from the past and present, with great attention to their identifying characteristics, including height, physique, jersey numbers, home town, class year and statistics.  Hart brought a class action on behalf of himself and other similarity situated college football players, who are prohibited under NCAA rules from any commercial exploitation of their names or likenesses, alleging that Electronic Arts violates their right of publicity under New Jersey law.  A federal district court in New Jersey dismissed the complaint, finding that the video game is protected expression under the First Amendment. Last week, the Third Circuit reversed the decision, agreeing that video games are protected by the First Amendment, but disagreeing with the District Court’s application of the law.  The opinion includes a lengthy discussion of the right of publicity laws in general, and the differing views and how to harmonize the right with this county’s broad First Amendment protection. The Court  concluded that the appropriate test is the “Transformative Use Test”, rejecting a test that would require the Court to double as art critics.  The Transformative Use Test  is borrowed from copyright law, specifically the fair use doctrine, and this Court found that it is particularly appropriate for expressive works such as a video game.  The test asks “whether the product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.”  The expression must be “something other than the likeliness of the celebrity.”  This test had previously been applied in a case brought by the band No Doubt, which sued over their likeness in the video game Guitar Hero. Applying the Transformative Use Test to Hart’s action, the Court determined that the video game character based on Hart was essentially an identical and realistic likeness of the Rutgers quarterback, and thus not transformative.  This is true notwithstanding that users were permitted to make minor alterations to the players, because the “unaltered likeness is central to the core of the game experience.” The Third Circuit remanded the case back to the District Court for further proceedings. Notes:  There is no federal right of publicity claim.  This decision focused on the First Amendment implications of the right of publicity law, but the plaintiff’s claims are based on New Jersey’s right of publicity.   Right of publicity laws vary widely by state.  For instance, California’s statute is aimed towards protection of celebrities, and the right can be transferred upon death so long as the person marketed himself or herself while alive.  By contrast, New York’s statute is based on the right of privacy and is not dependent on a person’s marketing oneself.   In New York, the right of privacy expires at death. (Mark) For informational purposes only.  Not legal advice.]]]]> ]]>