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Athlete’s Right of Publicity Outweighs First Amendment Protections for EA Video Game, Court Holds

Commentary First Amendment
Hart v. Electronic Arts, Inc. By Samantha Rothberg – Edited by Alex Shank [caption id="attachment_3354" align="alignleft" width="201"]Photo By: Hector Alejandro - CC BY 2.0 Photo By: Hector Alejandro - CC BY 2.0[/caption] Hart v. Electronic Arts, Inc., No.  11–3750 (3d Cir. May 21, 2013) Slip opinion In a 2-1 opinion authored by Judge Joseph A. Greenaway, Jr., the court held that former college athlete Ryan Hart’s interest in protecting his identity outweighed EA’s First Amendment rights. Hart, slip op. at 61. In determining how to strike the proper balance between the right of publicity and the First Amendment, the court adopted the “transformative use” test, which has its roots in copyright law. Id. at 51. Reuters provides an overview of the case and discusses the implications for a similar case pending in the Ninth Circuit. The Electronic Frontier Foundation criticizes the decision for failing to protect freedom of speech and for treating the right of publicity as a form of intellectual property rather than as a more limited right to control the commercial use of one’s identity. Marc Edelman of Forbes, however, celebrates the decision as “a big win for athletes and entertainers everywhere” that will make it easier for celebrities to protect against the unlicensed use of their image by video game developers. The plaintiff, Ryan Hart, was the Rutgers University quarterback from 2002 to 2005. Hart, slip op. at 6. The defendant, Electronic Arts, sells a successful NCAA Football video game franchise. Id. at 7–8. Players can choose to play as a particular “virtual avatar” of a college football player. If a player chooses to play as the Rutgers quarterback in the defendant’s NCAA Football 2006 video game, their avatar would have Hart’s number, vital and biographical statistics, and appearance. Id. at 9. Hart sued EA for violating his right of publicity. Id. at 10. The district court granted summary judgment for EA on the grounds that their video game was expressive speech protected by the First Amendment, and Hart appealed. Id. at 11. The Third Circuit reasoned that while EA’s video game enjoyed First Amendment protection, the court was obligated to balance those interests against Hart’s right to control his identity. Id. at 20. The balancing of those rights raised a question of first impression, and the court considered three tests. Hart urged the court to adopt the “predominant use” test, under which the First Amendment trumps the right of publicity only where the predominant purpose of the work is expressive rather than commercial. Id. at 24. The court rejected this narrow approach, noting that it led down the “dangerous road” of requiring courts to analyze the expressive merits of a work. Id. at 25–26. EA urged the court to adopt the trademark-based Rogers test, which permits the use of the individual’s likeness unless it is “wholly unrelated” to the work. Id. at 28 (citing Rogers v. Grimaldi, 875 F.2d 994, 1004 (2d Cir. 1989)) The court rejected this test as a “blunt instrument” that could “potentially immunize a broad swath of tortious activity.” Hart, slip op. at 27, 28. The court ultimately settled on the “transformative use” test developed by the Supreme Court of California. Inspired by copyright’s fair use doctrine, the test hinges on “whether the product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” Id. at 38 (citing Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 804-08 (Cal. 2001)). The court applied the transformative use test narrowly, focusing solely on EA’s depiction of Hart and disregarding the game’s other creative elements, and found that the depiction of Hart was not sufficiently transformative to overcome Hart’s right of publicity claim. Judge Thomas Ambro dissented. The dissent supported the majority’s adoption of the transformative use test but rejected its application of the test as unacceptably narrow. The dissent would have held that EA’s First Amendment interests outweighed Hart’s right of publicity claim because the transformation of “Hart’s mere likeness into an avatar that, along with the rest of a digitally created college football team, users can direct and manipulate in fictional football games,” combined with the other creative elements in the game such as graphics, sound effects and game scenarios, was sufficiently transformative. Id. at 9. The Hart decision highlights the growing acceptance of the transformative use balancing test even as it puts a thumb on the scale for publicity rights by narrowing the inquiry to the treatment of the individual’s likeness rather than the work as a whole.  If widely adopted, this approach could have far-reaching implications for video game licensing.