In 2009, Ryan Hart, a former Rutgers University football student-athlete, filed suit against Electronic Arts, Inc. (“EA”) for allegedly violating his right of publicity as recognized by New Jersey law. Hart’s claims stem from EA’s use of his image, likeness, and biographical data in the popular NCAA Football series of videogames. On September 9, 2011, the District Court of New Jersey granted EA’s motion for summary judgment on the grounds that its use of Hart’s likeness was protected by the First Amendment. This appeal followed.
The Third Circuit noted that “video games are protected as expressive speech under the First Amendment.” The United States Supreme Court has found that “video games communicate ideas – and even social messages – through many familiar literary devices….” As such, video games enjoy full First Amendment protection. Accordingly, the right of publicity, a common law cause of action, squarely conflicts with the First Amendment and, thus, requires the balancing of the interests underlying the right of free expression against the interests in protecting the right of publicity.
The Third Circuit chose to employ the Transformative Use Test, a test created by California state courts, to balance these competing interests. The Transformative Use Test turns on
[w]hether 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. We ask, in other words, 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.
Thus, the Third Circuit looked to determine whether Hart’s identity is sufficiently transformed in NCAA Football. The Court found that “the digital avatar does closely resemble the genuine article. Not only does the digital avatar match [Hart] in terms of hair color, hair style and skin tone, but the avatar’s accessories mimic those worn by [Hart] during his time as a Rutgers player.” Additionally, the Court found that the digital Hart does exactly what Hart did at Rutgers (i.e., plays college football). EA pointed out that there are multiple artistic levels of creation such as digitized sights and sounds and college football stadia, but the Court concluded that these additions do not alter or transform Hart’s identity in a “significant way.” Finally, the Court found that Hart’s “unaltered likeness is central to the core of the game experience, [thus] we are disinclined to credit users’ ability to alter the digital avatars in our application of the Transformative Use Test to this case.”
The Third Circuit, therefore, held that the NCAA Football 2004, 2005 and 2006 games at issue “do not sufficiently transform [Hart’s] identity to escape the right of publicity claim.” Accordingly, the case was reversed and remanded to the trial court for further proceedings.