In this guest post, Jasleen Ahuja, a student in the Entertainment Law and Web 2.0 miniterm class, updates one in a series of lawsuits by onetime collegiate athletes against videogame companies that use their likenesses in their products:
U.S. District Judge Freda Wolfson in New Jersey recently dismissed a lawsuit by former Rutgers star quarterback Ryan Hart against Electronic Arts. He had argued in Hart v. Electronic Arts Inc et al that the video game maker used his name and likeness without permission. Wolfson decided that EA’s right to free speech outweighed his right to control the use of his name and likeness. This is one of several cases filed by onetime NCAA athletes challenging how college athletics controls the rights to their identities.
The U.S. Supreme Court, of course, sent a powerful signal of a kind when it recently ruled that videogames are a protected form of free speech, overturning a California law, passed in 2005 but never enacted, which would have fined retailers up to $1,000 for selling violent games to minors.
The New Jersey ruling squares with this precedent. The district court also employed the transformative test of copyright law in its ruling, finding that changes to a copyrighted work may qualify as fair use. In Kelly v. Ariba Soft and Perfect 10 v. Google, courts held that creation and use of thumbnails, allowing for easy browsing via search mechanisms of groups or catalogs of larger images, was transformative.
In this case, the court ruled that a game image, though looking like Hart, was transformative enough to be fair use. The judge said the interactive nature of EA’s NCAA Football, including participants’ ability to change player names, manipulate their attributes and create rosters, qualified the use of Hart’s likeness as transformative and a fair use.
As Biederman Blog editor Sam Herting earlier has noted, another of the NCAA athletes’ cases has made its way to the U.S. Ninth Circuit.