A federal appeals court recently reinstated former Rutgers University quarterback Ryan Hart’s lawsuit against videogame giant Electronic Arts, Inc. (EA) for allegedly violating his right of publicity by using his likeness and bio in its NCAA Football videogame. EA had argued that the First Amendment freedom of expression shields its inclusion of real college football players in its videogame while Hart argued that the First Amendment must yield to his rights in his own name. Although EA prevailed at the lower, district court level, the appeals court held that Hart should be allowed to proceed with his suit under the “Transformative Use” test.
The test for permitted use of a person’s likeness has undergone a number of iterations over the years. Courts appear to have settled on the copyright-like Transformative Use test. Under that test, a person’s right of publicity is violated by his depiction in a work unless it is altered in a significant way—i.e., “transformed.” For example, parodies and fictionalized portrayals are typically sufficiently different from reality to meet the standard. Where the likenesses are a substitute for the original and effectively just “digital facsimiles,” they are not accorded First Amendment protection. In NCAA Football, the court commented that “[t]he digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game.” Thus, EA’s use was not transformative; it was a copy of the player himself.
The decision may stop what many believe is the exploitation of student-athletes by colleges and universities that have been accused for years of wielding NCAA rules to profit from student-athletes while the athletes, themselves, cannot be compensated lest they forfeit their amateur statuses. NCAA member schools collectively license their school names, team names, uniforms, logos, stadium fight songs, and other game elements to EA while the actual players who undoubtedly attract purchasers do not see a dime.
Some see this decision as a step toward players being paid for their likenesses, but I do not see it. The main issue is not that EA does not want to pay players. In fact, EA has paid professional players for years and would almost certainly pay for college players’ likenesses, even if it would prefer to save money by not doing so. The real problem is with the NCAA, which has zero interest in losing its monopoly over profits from college football. Most likely, EA will have to change the game avatars so that they do not resemble actual players.
The precedent this sets, however, may have farther-reaching implications for game broadcasts and jersey sales, among other things. The NCAA, if nothing else, has proven to be resilient when challenged. But as court cases pile up (the NCAA is facing several) that resiliency is going to be significantly tested in the next few years.
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