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Judge Tosses EA 'NCAA Football' Lawsuit Brought by Ex-Quarterback

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By Stephanie Rabiner, Esq. on September 13, 2011 4:10 PM

U.S. District Judge Freda Wolfson tossed the EA NCAA Football lawsuit on Friday, finding that the First Amendment rights of the video game developer outweigh the right of former Rutgers University quarterback Ryan Hart to control his likeness.

Hart sued Electronic Arts, arguing that the company violated his publicity rights by creating an in-game player with similar attributes and the same jersey number.

EA, however, did not use his actual name.

The depiction of celebrities in video games has received a significant amount of scrutiny in recent years, particularly in the realm of sports and music.

Because video games are protected expression under the First Amendment, courts faced with these lawsuits must balance the right of a plaintiff to control his public image with the free speech rights of game creators.

As the Supreme Court has yet to definitively rule on the issue, courts use a variety of tests. Judge Wolfson chose to focus on what is known as the transformative test.

Borrowing from copyright and fair use law, the test considers whether the defendant has added significant expression to the appropriated content. Have they created another level of speech? Or merely used the plaintiff's likeness as is?

Pointing to the interactive nature of EA's NCAA Football, including the ability to change names, manipulate player attributes, and create rosters, the judge found that Electronic Arts used Hart's likeness in a transformative manner.

Finally, dismissing the EA NCAA Football lawsuit, she further concluded that works of such transformative nature are entitled to First Amendment protection in the face of publicity rights claims.

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