Hart v. Electronic Arts, Inc.
U.S. District Court, District of New Jersey
Case No: 3-09-cv-05990
This case was recently remanded to the United States District Court for the District of New Jersey by the Third Circuit Court of Appeals after the Court of Appeals held that the grant of summary judgment was in error and that further proceedings were necessary.  The case arises from Plaintiff Ryan Hart (individually and on behalf of all others similarly situated) alleging that Electronics Arts (EA) NCAA Football series of games violated his right of publicity by appropriating his likeness in NCAA Football 2004, 2005, and 2006.  Hart was a successful quarterback for Rutgers University from 2002 through the 2005 season, taking his team to their first Bowl game since 1978.  The case was originally dismissed after EA filed a motion for summary judgment; the district court held that EA NCAA games were protected under the First Amendment.

The Third Circuit, in determining that the District Court erred conducted a balancing test when coming to its decision to decide whether First Amendment rights superseded the right of publicity.  In conducting this analysis, the court looked to three tests: the predominant use test, the Rogers test, and the transformative use test.  The predominant use test maintains that, "If a product is being sold that predominantly exploits the commercial value of an individual's identity, that product should be held to violate the right of publicity and not be protected by the First Amendment."  The court did not, however, that if the predominant purpose is to comment on or about a celebrity (such as parody) more weight would be given to the expressive values.  The court ultimately declined this test stating that at best is was very subjective, but at worst is was arbitrary forcing judges to not only be, "impartial jurists" but also, "discerning art critics."  The court then turned to the Rogers Test from Rogers v. Grimaldi.  This test relies on a theory of trademark law, specifically false endorsement, and it holds that the use of celebrity likeness is acceptable as long as it is not simply, "a disguised commercial advertisement for the sale of goods and services".  The court also rejected this test stating that it would be unwise to determine that Hart was unable to retain his right of publicity because his likeness was being used in the very same arena from which it was derived.  The court reasoned that it made sense that any use of Hart's likeness would be in a football setting since that is where his celebrity came from.  After rejecting the predominant use and Rogers test, the court adopted the transformative use test.  This test requires that an artist adopting the likeness of another must contribute something more than a "merely trivial" variation to be protected under the First Amendment.  However, the threshold to meet this test is rather low, a work is transformative if it adds "new expression".  That alone is sufficient to fall within the boundaries of the transformative use test.  Ultimately, the Court of Appeals decided that NCAA Football was not sufficiently transformative to attain First Amendment protection because it adds nothing creative to Hart's likeness.  EA argued that all player avatars could be customized, therefore satisfying the transformation requirement.  However, the court held that the main appeal of Hart's likeness was maintaining it as is so that fans could play as him.  Furthermore, any customization was not a transformation of Hart's likeness allowing the use, but was instead a new creative product that caused the use to cease to exist. 

This case is still pending in the District Court of New Jersey after the Third Circuit's opinion was filed on May 21, 2013.  If, after further proceedings, the District Court determines that Hart's right to publicity was affected, it could have a substantial effect on EA NCAA series.  Because NCAA athletes cannot receive compensation that in any way relates to their athleticism, it is unlikely that players would sign away their likenesses to EA as there is little benefit to be gained.  This would make the game series a potentially huge liability for the company, putting them in a position that would require they either risk litigation or lose the distinctiveness of the athletes that fans of the series purchase the game for.

We will continue to monitor this case and provide any relevant updates as they become available.
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