Right of Publicity Trumps 1st Amendment in Hart Case

In a precedential decision, the Court of Appeals, 3rd Circuit, reversed a New Jersey District Court that had granted a Summary Judgment to Defendant Electronic Arts, Inc. “EA” in a video game dispute with the Plaintiff, former Rutgers quarterback, Ryan Hart.  Hart played for Rutgers from 2002-2005 taking the Scarlet Knights to the Insight Bowl his senior year.  As a successful player, his likeness was replicated in an avatar used in Defendant’s NCAA Football version of a popular computer video game. 

Hart sued EA for violating his right of publicity.  Under New Jersey tort law, the underlying theory of this right is that a person has the right to enjoy the fruits of his own industry free from unjustified interference. It is unfair that one should be permitted to commercialize or exploit or capitalize upon another’s name, reputation or accomplishments merely because the owner’s accomplishments have been highly publicized.  EA acknowledged exploiting Hart’s likeness, but argued that its use was shielded by the freedom of expression granted in the First Amendment. 

In a case of first impression, the 3rd Circuit considered a number of approaches from other Courts beginning with Zacchini v. Scripps–Howard Broadcasting Co., the only Supreme Court case addressing the First Amendment in a right of publicity context. In Zacchini, an Ohio television news program recorded and subsequently broadcast Mr. Hugo Zacchini’s entire “human cannonball” act from a local fair.  The Court characterized Zacchini’s performance as the product of his own talents and energy derived as a result of his time, effort and expense.  Therefore, the economic value lay in the right of exclusive control over the publicity given to his performance.  Since this case, Courts have employed a balancing test to weigh the interest underlying the First Amendment against those underpinning the right of publicity. 

The balancing test the 3rd Circuit applied in this case was the transformative use test.  In doing so, the Court limited the test to consideration of the likeness of Plaintiff and found that the avatar’s attributes resembled Plaintiff in sufficient detail for the purpose of being used in the context for which Plaintiff had won fame and notoriety, NCAA college football.   The Court dismissed EA’s contention that the avatar’s likeness could be altered by the video game player by quoting an amicus brief that stated in part, “Under EA’s application of the transformative test, presumably no infringement would be found if individuals such as the Dalai Lama and the Pope were placed within a violent “shoot-em-up” game, so long as the game included a “mechanism” by which the user could manipulate their characteristics.”  That a video game should satisfy the Transformative Use Test simply because it includes a particular interactive feature would lead to improper results. Interactivity cannot be an end unto itself.

This case represents a huge win for professional athletes and entertainers seeking to license their rights of publicity to video game makers.  Of course, the industry may pass along these costs to the gamers.  What if the game came with generic avatars that the gamers could program themselves?   What of the Court’s decision to limit the test to the likeness of the player (avatar) rather than consider the video game itself as transformative?  Please send me your thoughts and comments.

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