EA Can Use Athletes’ Images in Video Games

     (CN) – Electronic Arts is off the hook after a federal judge dismissed a former college quarterback’s claims that the video game developer based a character on him without permission in the best-selling game “NCAA Football.”
     Ryan Hart, quarterback from 2002 to 2005 for Rutgers State University in New Jersey, filed a right of publicity class action against Electronic Arts in the Superior Court of New Jersey in 2009, claiming the company used his name and likeness without permission.
     Hart said Electronic Arts created a virtual player with his exact attributes in four versions of the game, including height and weight, home state, skills and on-field accessories.
     “NCAA Football,” released annually, features more than 100 Division I college football teams and thousands of players from the National Collegiate Athletic Association each year. The game identifies players by jersey number and position, but not by name. The virtual player in question wore Hart’s actual jersey number, 13, a left wrist band and helmet visor – all attributes shared by the real life Hart – and even hailed from Florida.
     Electronic Arts removed the lawsuit to federal court, and Judge Freda Wolfson allowed Hart to file a second amended complaint after he left out exactly which aspects of his likeness were included in the game.
     While the lawsuit was under consideration, the U.S. Supreme Court granted video games First Amendment protection in Brown v. Entertainment Merchants Association. The lawsuit challenged a California statute that “prohibits the sale or rental of ‘violent video games’ to minors, and requires their packaging to be labeled ’18.'”
     According to that ruling, “Like the protected books, plays, and movies that preceded them, video games communicate ideas – and even social messages – through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”
     Hart contended that “NCAA Football” constituted commercial speech and was not afforded extensive First Amendment protections.
     But Judge Wolfson rejected that argument, finding that the video game is a work of art because players create custom athletes – changing characters’ hair color, skill levels and a variety of other attributes.
     Wolfson underscored the creative aspect of making a video game.
     “Viewed as a whole, there are sufficient elements of EA’s own expression found in the game that justify the conclusion that its use of Hart’s image is transformative and, therefore, entitled to First Amendment protection … the NCAA Football game contains ‘virtual stadiums, athletes, coaches, fans, sound effects, music, and commentary, all of which are created or compiled by the games’ designers.'”
     Wolfson said three factors, as established by Facenda v. N.F.L. Films Inc., were to be used when identifying commercial speech: “(1) is the speech an advertisement; (2) does the speech refer to a specific product or service; and (3) does the speaker have an economic motivation for the speech.”
     “NCAA Football” doesn’t qualify under those factors, Wolfson found.
     “Whatever First Amendment protection is afforded to commercial speech, ‘NCAA Football’ is not commercial speech,” Wolfson wrote. “Defendant’s First Amendment right to free expression outweighs plaintiff’s right of publicity.”
     The judge granted Electronic Arts’ motion for summary judgment.
     College athletes are currently prohibited from entering into licensing agreements, and Electronic Arts Sports may use NCAA team trademarks, uniforms and logos via agreements with the Collegiate Licensing Company.
     The lawsuit is not the first against Electronic Arts.
     In February 2010, a 9th Circuit judge allowed a similar lawsuit by former Arizona State University and University of Nebraska quarterback Samuel Keller to proceed, which Electronic Arts has appealed.
     And in May, a federal court in San Francisco rejected a licensing complaint from Ed O’Bannon, former basketball standout at University of California, Los Angeles against Electronic Arts, the NCAA and the College Licensing Company.
     Hart led the Scarlet Knights to the 2005 Insight Bowl and set school records for passing completions and attempts. He now works in insurance.

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