In 2009, Sam Keller (former Arizona State University and University of Nebraska quarterback) filed suit against Electronic Arts (EA), the NCAA, and Collegiate Licensing Company and argues, among other things, that his right of publicity was violated when EA used his image, likeness, and information to create the NCAA Football game.  Shortly thereafter, Ryan Hart (former Rutgers University quarterback) filed a similar suit in the United States District Court of New Jersey asserting right of publicity claims against EA solely.  The basis of Hart’s complaint states that EA uses student-athletes’ unique attributes, including personal characteristics, accessories, and biographical data, in the NCAA Football videogame.  On September 9, 2011, the Court granted EA’s Motion for Summary Judgment and dismissed Hart’s claims.

EA filed a Motion for Summary arguing that Hart’s claims are barred by the First Amendment.  EA acknowledged that Hart has a prima facie right of publicity case, but argues that the creation of virtual players and the videogame in total is a transformative work.  The use of the term “transformative work” is important, because courts across the country generally apply the transformative test to decide right of publicity cases.  The transformative test is best evidenced when an individual takes another’s expression of raw material and transforms it into a creation of new information, new aesthetics, new insights, and understandings.  The state courts of California are commonly credited with developing and shaping the transformative test.

The District Court employed the transformative test and indicated the case was a close call by stating the game developer “walk[s] a fine line.”  In reviewing the videogame in total, the District Court stated “there are sufficient elements of EA’s own expression found in the game that justify the conclusion that its use of Hart’s image is transformative and, therefore, entitled to First Amendment protection.  For one, the game includes several creative elements apart from Hart’s image.”  Additionally, the District Court stated “the game permits users to alter Hart’s virtual player, control the player’s throw distance and accuracy, change the name of which the player is part by downloading varying team names and rosters, or engage in “Dynasty” mode, in which the user incorporates players from historical teams into the gameplay.”  In sum the District Court concluded EA is entitled to First Amendment protection and dismissed Hart’s claims.

It is important to note that this decision does not affect Keller’s claim that is currently pending in the United States District Court of the Northern District of California.  In fact, on a motion to dismiss, the District Court concluded that the NCAA Football videogame is not sufficiently transformative.  Of course, a motion to dismiss and a motion for summary judgment have different standards.  EA is currently appealing the denial of their motion to dismiss in accordance with a California law that grants free speech rights (Anti-Slapp).

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.