Third Circuit Finds That Use of a College Football Player's Likeness in a Video Game Violates His Right of Publicity

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The Third Circuit Court of Appeals issued an opinion on May 21, 2013, finding that the use of the likeness of Ryan Hart, a former standout quarterback for Rutgers, in a video game about college football, violated Mr. Hart's right of publicity. Hart v. Electronic Arts Inc., No. 11-3750, 2013 U.S. App. LEXIS 10171, at *3 (3d Cir. May 21, 2013). The ruling could significantly impair the ability of video game makers to continue to use "real people" in video games to enhance the realism of those games, particularly in the context of sports video games.

The world of video games has been a battleground in the conflict between the First Amendment and intellectual property rights. Because the content of video games is entitled to First Amendment protection, some courts have found the use of third party trademarks and even the likenesses of real individuals in video games to be permissible under certain circumstances. 

This particular case involved the use of Mr. Hart's likeness by defendant Electronic Arts (EA) in a video game entitled NCAA Football which is intended to allow users to realistically experience college football by interacting with over 100 virtual teams and thousands of virtual players which are sometimes referred to as avatars. One of these avatars was Mr. Hart. Although his name was not used, several editions of NCAA Football included an avatar who played quarterback for Rutgers, looked very much like Mr. Hart, wore his number and even his wristband and shared his biographical background and height and weight. One of the features of the game allows users to change each virtual player's appearance and most of his vital statistics but certain details remain immutable including the player's team and class year.

Hart commenced a legal action in the District Court of New Jersey alleging that EA had violated his right of publicity. EA moved for summary judgment arguing that its use of Mr. Hart's likeness was protected under the First Amendment. The New Jersey District Court granted the motion. Hart v. Electronic Arts Inc., 808 F. Supp. 2d 757, 794 (D.N.J. 2011). 

Hart appealed and the Third Circuit Court of Appeals reversed in a 2-1 opinion. The appeals Court began its analysis by noting, as the Supreme Court recently confirmed in Brown v. Entertainment Merchants Association 131 S.Ct. 2729, 2733 (2011), that the content of video games was entitled to First Amendment protection. However, that protection can be limited where the right of free expression necessarily conflicts with other protected rights including an individual's right of publicity.

Because neither the State of New Jersey nor the Third Circuit had previously established a definitive methodology for balancing this tension, the Court treated this as a case of first impression and set out to find one somewhere else. After evaluating three different tests, the Court concluded that the Transformative Use Test, as first applied by the California Supreme Court in Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 804-808 (Cal. 2001), was the best. This test, which imports the concept of transformative use from copyright law, evaluates the extent to which the use contains significant transformative elements that would be less likely to interfere with the economic interest implicated by the rights of publicity. As the California Supreme Court noted in Comedy III, in finding that charcoal portraits of The Three Stooges violated the comedians' rights of publicity because there was "no significant transformative or creative contribution" by the author and "the marketability and economic value [of the work] derives primarily from the fame of the celebrities depicted," the Transformative Use Test looks to see whether the product that contains a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than simply creating a likeness of an individual.  Id. at 811.

In applying the test, the Court found that neither the manner in which the Ryan Hart avatar was depicted nor the context in which it was used was transformative. In fact, the digital Rutgers quarterback mimicked the appearance and life of the real Mr. Hart down to his wristband and hometown and did exactly what Mr. Hart had done in real life; namely play quarterback for Rutgers. Digitalization, without something else, is not transformation.

The Court then examined the question of whether the feature of the game that permitted users to alter the digital player's appearance could be sufficiently transformative to invoke First Amendment protection, as the New Jersey District Court had found in granting EA's Motion for Summary Judgment. The Third Circuit Court disagreed with the lower court finding the mere presence of this feature, without more, was not sufficient and noting that if it were so, video game companies could commit the most blatant acts of misappropriation only to absolve themselves by including a feature that allows users to modify the digital likenesses. 

The Court also rejected EA's argument that the other creative elements of the game, wholly unrelated to Mr. Hart, are so numerous as to render the entire game, including the virtual Mr. Hart, transformative.

In conclusion the Court found that the NCAA Football games do not sufficiently transform Mr. Hart's identity in the game itself to escape the right of publicity claim. However, the Court did find that EA's use of a photograph of Mr. Hart, as part of a photo montage in NCAA Football 2009, was sufficiently transformative to be protected by the First Amendment.

It should be noted that this particular game may not be over as the Ninth Circuit Court of Appeals is currently considering essentially the same issues in two cases pending before it¹ and may reach an entirely different decision.

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¹See Davis v. Electronic Arts Inc., No. 10-cv-03328, 2012 WL 3860819 (N.D. Cal. Mar. 29, 2012); Keller v. Electronic Arts, Inc., No. 09-cv-01967, 2010 WL 530108 (N.D. Cal. Feb. 8, 2010).

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