Tuesday, September 20, 2011

Quarterback’s Publicity Rights Claim Against Video Game Maker Rejected

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

The First Amendment barred former Rutgers quarterback Ryan Hart’s New Jersey common law right of publicity claim based on misappropriation of his likeness in the Electronic Arts video game NCAA Football, the federal district court in Trenton has ruled.

Hart asserted the right of publicity in a class action complaint on behalf of other players. The court held that the First Amendment trumped the right of publicity because EA’s use of Hart’s likeness was “transformative” and also because the use was clearly related to the game and not simply an advertisement for an unrelated product.

Transformative Test

Borrowed from the copyright fair use doctrine, the transformative test balances the competing interests of the right of publicity and the First Amendment by protecting works that add significant elements of expression beyond the mere literal depiction or imitation of a celebrity for commercial gain.

Elements of EA’s own expression found in the game justified the conclusion that its use of Hart’s image was transformative, the court held. NCAA Football contained virtual stadiums, athletes, coaches, fans, sound effects, music, and commentary, all of which were created or compiled by the game's designers. Over 100 virtual teams and thousands of virtual players were included.

Focusing on Hart’s virtual image alone, the court acknowledged that a virtual player bore resemblance to Hart and was designed with Hart’s physical attributes, sports statistics, and biographical information in mind. However, the game permitted users to alter Hart’s virtual player, control the player’s throw distance and accuracy, change the team of which the player is a part by downloading varying team names and rosters, and incorporate players from historical teams into the gameplay.

EA created the mechanism by which the virtual player could be altered, as well as the multiple permutations available for each virtual player image, the court noted.

Rogers Test

Because EA’s use of Hart’s likeness was clearly related to the game and not simply an advertisement for an unrelated product, the court determined that the right of publicity claim also was barred under the test developed in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). The Rogers test had been applied in cases when the appropriation of a celebrity likeness created a false and misleading impression that the celebrity was endorsing a product.

As explained in Seale v. Gramercy Pictures, 949 F.Supp. 331 (ED Pa. 1996), applying Rogers to a Pennsylvania right of publicity claim, if a name or likeness is used solely to attract attention to a work that is not related to the identified person, the user may be subject to liability for a use of the identity in advertising. On the other hand, the use of a person’s name and likeness to advertise a work concerning that individual does not infringe the right of publicity, according to the court.

The transformative test provided the best analysis, in the court’s view, but EA was entitled to protection under either the transformative test or the Rogers test, the court concluded.

The September 9 opinion in Hart v. Electronic Arts, Inc. will be reported at CCH Advertising Law Guide ¶64,395.

Further information regarding CCH Advertising Law Guide appears here.

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