As reported by USA Today, the U.S. Court of Appeals for the Third Circuit recently overturned a lower court decision dismissing a lawsuit filed by former Rutgers University football quarterback Ryan Hart (“Hart”) against video game manufacturer Electronic Arts. The lawsuit alleges that Electronic Arts violated Hart’s “right of publicity” by using his likeness and biographical information without his consent.
The right of publicity is an intellectual property right that protects a person’s ability to control the commercial use of his or her identity or characteristics. The scope of the right of publicity is quite broad. It generally protects a person’s name, voice, signature and likeness, and may, depending on the circumstances, also protect a person’s nickname, stage name, pen name and “persona” (i.e., those elements that identify a person).
The district court initially ruled that Electronic Art’s use of Hart’s likeness was protected by the First Amendment, which protects video games as expressive free speech. The appellate court, however, held that First Amendment protection can be limited where it conflicts with other protected rights – in this case, Hart’s right of publicity. In order to receive First Amendment protection, Electronic Arts would have had to show that it transformed Hart’s identity to a significant degree. Here, the court noted that the success of the video game at issue was largely due to its realism and detail, which it achieved by using the characteristics of actual players. The quarterback in the disputed video game not only had the same number, height, weight and resemblance as Hart, but also his hair color, hair style, skin tone and even wore the accessories that Hart wore. The appellate court therefore concluded that Electronic Arts had impermissibly violated Hart’s right of publicity by using his personal attributes to sell its game without authorization. The majority stated:
“The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game. This is not transformative; the various digitized sights and sounds in the video game do not alter or transform the appellant’s identity in a significant way.”
Electronic Arts is embroiled in other litigation involving similar issues, one case in federal district court in California and another before the U.S. Court of Appeals for the Ninth Circuit. The former case is an antitrust lawsuit involving the use of college football and basketball players’ names and likenesses. If certified as a class action, it would potentially put billions of dollars of damages at issue. The latter case is an appeal by Electronic Arts involving the use of the likeness of a former Arizona State and Nebraska quarterback (a very similar case to the Third Circuit case). These cases are surely being watched closely by the NCAA, whose licensing arm receives royalties for the use of school and team names, uniforms, etc. in video games. Should Electronic Arts be successful with its Ninth Circuit appeal, there may be a conflict between the circuits regarding the interplay between the First Amendment and the right of publicity. This would set the stage for Supreme Court review of this issue in the near future.
