First Amendment defence fails to sack quarterback’s right-of-publicity suit

United States of America

In Hart v Electronic Arts Inc (Case No 11-3750, May 21 2013) (Greenway Jr J) (Ambro J dissenting), addressing for the first time the proper test for analysing right-to-publicity claims in its circuit, the US Court of Appeals for the Third Circuit has reversed a lower court summary judgment that a company’s unauthorised use of a college football player’s likeness in a popular sports video game was protected under the First Amendment.

Ryan Hart, a quarterback at Rutgers University from 2002 to 2005, brought a putative class action lawsuit against Electronic Arts (EA) for using college football players’ likenesses in EA’s popular NCAA Football video game. NCAA Football included a digital avatar that played on the game’s Rutgers football team that closely resembled Hart in both appearance and biographical information. Because the Third Circuit and the US District Court for the District of New Jersey had not expressly adopted a test for analysing right-to-publicity claims, the trial court analysed the case under two tests - the transformative use test, commonly used in copyright law, and the Rogers test, commonly used in trademark claims. According to the district court, both tests yielded the same result: EA’s First Amendment defence trumped Hart’s right-to-publicity claim, due in part to a game player’s ability to modify certain characteristics (height, weight, hairstyle, face shape, body size and complexion). Hart appealed.

The Third Circuit explained that the proper test for analysing right-of-publicity claims in that circuit is the transformative use test because that test balances the right of publicity against First Amendment rights. Under the transformative use test, a court first examines whether the work is primarily the creator’s own expression or the individual’s likeness. In applying the test, the Third Circuit observed that EA’s digital avatar closely resembled Hart’s physical likeness and included Hart’s identical biographical information. The court also determined that the context in which the avatar appears - a football game - did not transform the digital avatar’s identity in any way. Indeed, the court observed that the digital Ryan Hart does exactly the same thing the actual Ryan Hart did while at Rutgers.

With respect to a player of NCAA Football’s ability to change the avatar’s appearance, the Third Circuit noted that this interactive feature, without more, cannot satisfy the transformative use test. If a game player chose to make these modifications to an avatar, the court observed such changes would be superficial and thus not a transformative use of a college football player’s likeness. The court thus reversed the trial court’s grant of summary judgment to EA and remanded for further proceedings.

In dissent, Judge Ambro agreed with the Third Circuit’s decision to employ the transformative use test, but contended that the court had wrongly applied the test in this case. Judge Ambro argued that the court had improperly limited its inquiry solely to Hart’s likeness rather than the other features of NCAA Football. In Judge Ambro’s view, the numerous creative elements in NCAA Football as a whole transformed Hart’s likeness and therefore entitled the work to First Amendment protection.

EA petitioned for rehearing en banc on June 4, supported by amici media companies.

Mary Hallerman, McDermott Will & Emery LLP, Washington DC

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