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First Amendment rights superseded the right of publicity.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.