Third Circuit Reverses Summary Judgment In Favor of Video Game Maker In Important Right of Publicity Case

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In a much-anticipated opinion, the Third Circuit Court of Appeals yesterday reversed a New Jersey lower court decision granting summary judgment in favor of video game giant Electronic Arts against putative class representative and former Rutgers star quarterback Ryan Hart on his claim that EA misappropriated his identity and that of thousands of other collegiate players in its popular NCAA Football video game franchise in violation of their right of publicity. The decision is likely to have far-reaching consequences for video game makers and authors of any works containing characters which are thinly-disguised clones of sports stars or other celebrities.

In NCAA Football, the player avatars are virtually identical to their real-life athlete counterparts, down to their physical appearance, jersey number, home town, unique playing style, even their wrist bands, visors and gloves. EA obtains no licenses from and pays no royalties to the ex- and current college players, citing the First Amendment's protection of creative expression. The players counter that inclusion of their life-like avatars adds the realism that makes EA's games so popular, and constitutes commercial exploitation of their identities without their consent....

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