The video game industry is not off the hook just yet. Former Rutgers football player, Ryan Hart, just got the go ahead from the Third Circuit Court of Appeals to continue his Electronic Arts lawsuit. Hart had sued EA for misappropriation of his likeness in their NCAA Football video games depicting a college football player similar to him when he played.
This case is about all balancing rights; a celebrity's rights of publicity and the video game company's rights of expression. The Third Circuit reversed the district court decision holding EA's college football video games were entitled to First Amendment freedom of speech protection.
The video games concerned in this Electronic Arts lawsuit are the 2004, 2005, and 2006 installments of EA's popular video game, "NCAA Football." The game has a character with many similarities to Hart.
For example, the character has the same position, the same player number, the same helmet visor, a left wristband much like Hart used during games, and is the same height and weight. The game takes place in a college football stadium playing college football games. With all this considered, the court held EA failed to show they had significantly transformed Hart's identity.
In the court's opinion, it acknowledged various approaches courts use in striking the balance of interests. Ultimately the court decided this case based on the "transformative use test." The question that the court asks is "whether the product containing a celebrity's likeness is so transformed that is has become primarily the defendant's own expression rather than the celebrity's likeness."
The court applied the transformative use test and found that EA's games did not significantly transform Hart's identity to escape Hart's claim. The Third Circuit's ruling now allows Hart to pursue his right to privacy claim in district court keeping the video game industry on its toes a bit longer.
It's a good day for celebrities. Hart's attorney emphasizes especially how big this will be for college athletes who are barred from profiting from their fame. College athletes who can't profit from their fame themselves can at least prevent others from doing the same.
- Electronic Arts Loses at 3rd Cir: NCAA Football Star Can Sue Over Video Game (FindLaw's Courtside Blog)
- Bill Russell Sues NCAA, Electronic Arts Over Using His Image (FindLaw's Tarnished Twenty Blog)
- EA Sports Free to Use College Athletes' Likenesses in Video Games (FindLaw's Tarnished Twenty Blog)