First Amendment Defeats Right of Publicity Claims Against Electronic Arts’ NCAA Football Video Games

Davis Wright Tremaine LLP

On Sept. 9, 2011, Judge Freda Wolfson of the United States District Court for the district of New Jersey issued a 67 page opinion that is not only the latest in a series of decisions involving Electronic Arts’ (EA) sports video games but is also a significant contribution to the law on the interplay between the First Amendment and the right of publicity. In Hart v. Electronic Arts, Inc., Civil Action 09-cv-5990, Judge Wolfson granted summary judgment for EA on the claims of a putative class of NCAA football players that EA had misappropriated their likeness and identity for a commercial purpose in violation of New Jersey law. The Court found that defendant’s First Amendment right to free expression outweighed plaintiff’s right of publicity.

Plaintiff Ryan Hart, a former quarterback for Rutgers University, had brought suit in Superior Court, New Jersey on behalf of himself and others similarly situated alleging, inter alia, that EA had violated his right of publicity by misappropriating his likeness as a virtual player in four editions of EA’s NCAA Football video game. After EA removed to Federal Court, it moved to dismiss. Judge Wolfson granted the motion, but gave Hart leave to file an amended complaint to allege additional facts in support of his right of publicity claim.

The amended complaint alleged that EA misappropriated Hart’s likeness by including in several editions of the game a virtual Rutgers player from his home state, bearing his jersey number, incorporating his physical attributes (such as height, weight, hair color and style) and preferences (wrist band, helmet visor), as well as his skills (such as his speed and agility rating and passing accuracy, all derived from his published season statistics). Hart argued that the games’ commercial value derived from the wholesale appropriation of the individual players’ identity and the resulting “realism” of the games. He further argued that the use of a photograph of Hart in a photomontage in the game constituted an unauthorized promotional use of his image.

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