NCAA_Football_12_tackling_screenshotThe First Amendment can’t bowl over the publicity rights of a former Rutgers quarterback when it comes to his depiction in a video game:

The U.S. Court of Appeals for the Third Circuit, in a case closely watched by powerful interests in sports and entertainment, has overturned a lower court ruling that granted summary judgment for Electronic Arts Inc.

The federal district court had found the video game-maker’s freedom of expression outweighed plaintiff-athlete Ryan Hart’s publicity rights and that the product in question contained creative elements that were transformative fair use.

EA, the appellee in the case, produces the video game NCAA Football. It features digital avatars that resemble real-life college football players and that can be controlled by game players.

The game-maker licenses from Collegiate Licensing Co. — the National Collegiate Athletic Association’s agent — “the right to use member school names, team names, uniforms, logos, stadium fight songs, and other game elements.” Unlike certain of its other video game franchises, EA does not license the likeness and identity rights for intercollegiate players.

Appellant Hart, a star at Rutgers University from 2002-2005, objected to the game’s use of his likeness and biographical information and argued that the maker violated his right of publicity, as rooted in New Jersey state law.  As a condition of his participation in NCAA sports, Hart was required to adhere to the organization’s amateurism rules. Those state that collegiate athletes loses their “amateur” status, essentially if they use their athletic skills for payment. So while he had to forgo money-making opportunities as an NCAA athlete, he was, because of the organization’s licensing agreement, rolled into the commercialism of the EA video game deal, the court noted.

The appellate judges called for a balancing of interests, citing the 1977 U.S. Supreme Court case Zacchini v. Scripps-Howard Broadcasting Co.  There, the court found that a news station violated the publicity rights of Hugo Zacchini, human cannonball artist, by airing his entire performance rather than, say, excerpts of it.

In the EA case, the interests to be balanced were a right to free expression by entertainment companies and an individual’s right to publicity.  Three balancing tests were discussed by the court: 1) the commercial-interest-based Predominant Use Test; 2) trademark-based Rogers test, and the 3) Transformative Use test.  The appellate court, ultimately, chose the “Transformative Use” test arising from Comedy III Prods. Inc. v. Gary Saderup, Inc.  The judge analyzed the “fair use” factor and sought to determine if the disputed work: added something new, with a further purpose or different character; or if it altered the first work, making it transformative enough to evade infringing on an indivudal’s right to publicity.

The higher court found Hart’s identity insufficiently transformed in the NCAA video game. The digital avatar closely resembles Hart, with an identical hair color, hair style, skin tone and player accessories.  There also was no transformative elements, based on context.  As U.S. District Judge Ambro Greenaway Jr. wrote: “The 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. This is not transformative.”

The appellate court also disagreed with the lower court that the mere ability to change the avatar’s appearance was sufficient enough to satisfy the Transformative Use Test.  An interactive element does enjoy First Amendment protection but the court stated “interactivity cannot be an end onto itself.”

This case had great significance in Hollywood, with the Screen Actors Guild supporting Hart, while the Motion Picture Association of America backed EA, submitting an amicus brief on this case. Online chatter about the meaning of the appellate decision has shown great divisions, too. See here and here.

The higher court remanded the case for possible trial and some analysts see potential for the matter to end up at the U.S. Supreme Court.