In a novel case involving videogame “avatars” based on real-life college football players, the Third Circuit Court of Appeals ruled that rights of publicity trump First Amendment protections. In reaching its decision, the appeals court relied on the transformative use test, which is grounded in copyright law.

In Hart v. Electronic Arts Inc., former Rutgers University quarterback Ryan Hart filed suit against Electronic Arts, Inc. for violating his right of publicity by using his likeness and biographical information in its NCAA Football series of videogames. In the games, users can choose from thousands of “virtual avatars” that resemble actual college football players.

In NCAA Football 2006, Rutgers’ quarterback wears number 13, is 6‟2” tall, weighs 197 pounds and resembles Hart. While users can change the digital avatar’s appearance and most of the vital statistics (height, weight, throwing distance, etc.), certain details remain fixed, including the player’s home state, hometown, team, and class year.

Based on these similarities, Hart filed suit, alleging that EA misappropriated his identity and likeness to enhance the commercial value of its NCAA Football games.
The district court granted summary judgment for EA after concluding that the video game was expressive speech protected by the First Amendment.

On appeal, the Third Circuit disagreed. While acknowledging that video games are protected as expressive speech under the First Amendment the court further noted that the protection could be limited when it conflicts with other protected rights, including the right of publicity. In balancing these competing interests, the court relied on the transformative use test. The test is derived from traditional fair use analysis under copyright law, namely whether and to what extent the new work is the creator’s own expression.

Applying the test to the facts of the case, the court noted that the videogame avatar closely resembled many of Hart’s physical attributes. “Not only does the digital avatar match Appellant in terms of hair color, hair style and skin tone, but the avatar’s accessories mimic those worn by Appellant during his time as a Rutgers player,” the court stated.

The court also examined the context within which the digital avatar exists, finding that it did not support EA’s position. “The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game,” Circuit Judge Joseph Greenaway wrote for the majority. “This is not transformative.”

Finally, the court considered the users’ ability to alter the avatar’s appearance. Unlike the district court, the Third Circuit declined to place special emphasis on this one factor. “If the mere presence of the feature were enough, video game companies could commit the most blatant acts of misappropriation only to absolve themselves by including a feature that allows users to modify the digital likenesses,” the court explained.

Interestingly, the Ninth Circuit Court of Appeals is currently considering a similar case. A California district court also found that EA’s use of players’ likenesses did not qualify for First Amendment protection under the transformative use test.

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I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +