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3rd Circuit Better Defines Right of Publicity in EA Sports Case

By Eric Misterovich

If you have ever played EA Sports’s NCAA Football, then you know one of the best things about the game is its realism.  Although the NCAA prohibits EA Sports from using the names of the players, EA Sports recreates the likenesses of the players from each school.  EA replicates each player’s height, weight, physical appearance, and biographical information.  Fans of the game love being able to recreate realistic versions of their favorite matchups against their team’s rival school or create unique matchups that they would never get to see on Saturdays.  However, the May 21, 2013 ruling by the United States Court of Appeals for the Third Circuit that EA Sports has potentially been infringing on respective athletes’ right of publicity could change the popular video game franchise forever.

The case started when former Rutgers quarterback, Ryan Hart, sued EA Sports in United States District Court for violating his right of publicity by using his likeness in NCAA Football without his permission.  The District Court granted summary judgment to EA Sports by finding that the First Amendment protected EA Sports use of Ryan Hart’s likeness.  The District Court based its decision on the 2011 decision by the Supreme Court in Brown v. Entertainment Merchants Association, in which the Court held that video games are a protected form of freedom of expression.

An individual’s right of publicity is an intellectual property interest that is similar to patent and copyright law by granting the individual the ability to reap the rewards of his or her endeavors.  The right of publicity essentially prevents third parties from exploiting a person’s fame for commercial gain.  For example, I would most likely infringe on Regis Philbin’s right of publicity if I decided to start selling a breakfast cereal called “Regis Philbin Flakes.”

However, the First Amendment to the Constitution protects freedom of speech and freedom of expression.  Therefore, individuals have the right to talk about and express opinions about celebrities.  This right conflicts with the individual’s right of publicity.  The courts have struggled to determine how best to balance the interests of an individual’s right of publicity against First Amendment protections.

Hart appealed the District Court’s decision to the United States Court of Appeals for Third Circuit, and the Third Circuit reversed and remanded the District Court’s decision.

In determining how to properly balance an individual’s right of publicity against First Amendment protections, the Third Circuit appropriated a version of copyright law’s fair use defense.  The Third Circuit named its balancing test the “Transformative Use Test.”

Under the Transformative Use Test, a defendant does not violate an individual’s right of publicity if the individual’s name or likeness is transformed to add new expression.  For example, works of parody, biography, or criticism are protected because the defendant is adding a new form of expression to the individual’s likeness.  The First Amendment freedom of expression protects these uses because to hold otherwise would essentially allow celebrities to use the right of publicity to censor any unfavorable portrayal.

Applying the Transformative Use Test to Hart’s case, the Third Circuit found that EA Sports had failed to “transform” its use of Hart’s likeness.  Therefore, Hart had a case that EA Sports violated his right of publicity.  The Third Circuit noted that EA Sports had taken Hart’s physical appearance, height, weight, and biographical information to create a digital version of him.  Furthermore, EA Sports characterized version of Hart played college football in college stadiums in the same way that Hart himself did during his time at Rutgers.  According to the Third Circuit, EA Sports did not “transform” its use of Hart’s likeness; it merely recreated a digitized version of him.

EA Sports defended itself by claiming that players of NCAA Football have the ability to alter the appearance of the individual players, and, therefore, its use was transformative.  The Third Circuit rejected this argument because consumers of NCAA Football buy the game for its realistic nature, and the digital character’s likeness to the actual player is the default setting.  The Third Circuit further argued that the fact that a character’s appearance can be altered alone is not a transformative use because otherwise video game manufacturers would always avoid violating the right of publicity if the consumer has the ability to alter the character’s appearance.

Hart is likely to win the case on remand based on the Third Circuit’s decision.  Essentially, the Third Circuit has ruled that EA Sports cannot use college football players’ likenesses in NCAA Football without violating the individual player’s right of publicity.  This ruling is sure to have a devastating impact on the next iteration of NCAA Football because it effectively detracts from the realistic nature of the game.

It is important to note that for EA Sports’s other sports video game franchises, such as Madden NFL, EA Sports has agreements to use the players’ likenesses.  However, NCAA rules prohibit college athletes from allowing their likeness to be used to promote a commercial product.  Therefore, college athletes cannot agree to have their likeness used.  The NCAA may have to change its rules because it stands to lose money if EA Sports sells less copies of NCAA Football.  You may want to hold off buying the newest copy of NCAA Football until this situation gets sorted.

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