The U.S. District Court for the District of New Jersey granted summary judgment to Electronic Arts, Inc. (“EA”), finding its use of a former football player’s likeness in its annual NCAA Football video games was fully protected noncommercial speech.
EA publishes a video-game permitting users to manipulate the actions of college football teams with virtual players in a virtual world of simulated games. The football teams are identifiable by name, and the uniform designs, logos, and stadium fight songs are all licensed from the NCAA. The virtual players, on the other hand, are identified only by jersey number and position. Ryan Hart, a former college football player for Rutgers—a team depicted in the video games—alleged that the depiction of a player avatar bearing his former number and position violated his right of publicity under New Jersey law. EA responded that the videogame is expressive work protected by the First Amendment, which trumps Hart's right of publicity claim.
The court focused on the “transformative use” test developed by California courts and the balancing test set forth in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). This test analyzes whether the celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question, making it transformative and protected.
In this case, the game included numerous creative elements apart from Hart’s image, such as virtual stadiums, athletes, coaches, fans, sound effects, music and commentary. Moreover, and perhaps more importantly, the court emphasized that EA created a mechanism in the game “by which the virual player may be altered, as well as the multiple permutations available for each virtual player image."
Next, the Court examined the Rogers test in determining whether First Amendment interests will trump a right of publicity claim. In applying this test, a court will make two queries: (a) whether the challenged work is wholly unrelated to the underlying work (or person asserting the claim), and (b) whether the use of the plaintiff’s name is a disguised commercial advertisement. In this case, the court found that one could not reasonably argue that Hart’s image was wholly unrelated to the game (it was college football, after all). But the use of Hart’s image was not a “disguised commercial advertisement.” Instead, the use of his image was part of an expressive act by EA that might draw upon public familiarity with Hart’s college football career but did not explicitly state that he endorsed or contributed to the creation of the game.
The court determined that because EA was entitled to First Amendment protection under either test, the court granted summary judgment in EA’s favor.