Intellectual Property Attorney

Another U.S. Court of Appeals Favors College Athletes’ Right of Publicity Over First Amendment Considerations

We previously posted a blog regarding a decision by the U.S. Court of Appeals for the Third Circuit that allowed former Rutgers University football player Ryan Hart to continue his lawsuit against video game manufacturer Electronic Arts. Hart had sued Electronic Arts over the use of his likeness and biographical information in video games without his consent.

As reported by The Wall Street Journal, the U.S. Court of Appeals for the Ninth Circuit has now issued a similar ruling in a similar case. In the Ninth Circuit case, former Nebraska and Arizona State quarterback Sam Keller and other college athletes filed a lawsuit alleging violations of their right of publicity with regard to the video game “NCAA Football.” The right of publicity generally protects the person’s ability to control the commercial use of his or her identity or characteristics, including a person’s likeness and “persona.” The video game at issue utilizes avatars with the same characteristics as the real players, including the same height, weight, build, skin tone, hair color, home state and jersey number.

As it had done in the Third Circuit case, Electronic Arts argued that the depiction of college football players in its video games is an artistic or expressive work protected by the First Amendment. The Court, however, held that in order to enjoy such protection, the game would have needed to add creative elements that transformed the avatars into something more than “mere celebrity likeness or imitation.” The Court found that the video game at issue did not do so, instead literally recreating the athletes in the very setting in which they achieved renown.

The attorneys for the college athletes will now seek to have the case certified as a class action, allowing thousands of current and former NCAA athletes to participate as plaintiffs and putting tens of millions of dollars at issue.

Thus, for the second time in a matter of months, an important decision has been rendered by a high level court in which the right of publicity has trumped the First Amendment. One plaintiffs’ attorney aptly summed up the Ninth Circuit decision: “You have a property right in your image, and [Electronic Arts] took it without permission.” We will continue to monitor this issue to see if future decisions follow the same trend.

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