(CN) - A former college quarterback may pursue claims against Electronic Arts for using his likeness in the best-selling video game "NCAA Football," the 3rd Circuit ruled.
Ryan Hart, quarterback from 2002 to 2005 for Rutgers State University in New Jersey, sued the California-based game developer in New Jersey Superior Court 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 popular 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. 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.
In September 2011, a federal judge dismissed Hart's right of publicity class action, citing First Amendment protection.
"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," Judge Freda Wolfson wrote.
Wolfson found that there were "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," including "virtual stadiums, athletes, coaches, fans, sound effects, music, and commentary, all of which are created or compiled by the games' designers."
"Whatever First Amendment protection is afforded to commercial speech, 'NCAA Football' is not commercial speech," Wolfson added. "Defendant's First Amendment right to free expression outweighs plaintiff's right of publicity."
On appeal, the 3rd Circuit on Tuesday reversed the decision and remanded the case to district court.
Citing the copyright-based "Transformative Use Test," the three-judge panel found that Electronic Arts did not "sufficiently transform [Hart's] identity to escape the right of publicity claim."
"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 various digitized sights and sounds in the video game do not alter or transform [Hart's] identity in a significant way," the 73-page ruling states.
"Appellant's overall claim for violation of his right of publicity should have survived appellee's motion for summary judgment," Judge Joseph Greenaway Jr. wrote.
Judge Thomas Ambro said he sympathized with college athletes featured in "NCAA Football," but sided with the district court.
"EA's use of actual college athletes' likenesses motivates buyers to purchase a new edition each year to keep up with their teams' changing rosters. The burn to Hart and other amateur athletes is that, unlike their active professional counterparts, they are not compensated for EA's use of their likenesses in its video games," Ambro wrote in dissent. "Were this case viewed strictly on the public's perception of fairness, I have no doubt Hart's position would prevail."
"I sympathize with the position of Hart and other similarly situated college football players, and understand why they feel it is fair to share in the significant profits produced by including their avatar likenesses into EA's commercially successful video game franchise," Ambro added. "I nonetheless remain convinced that the creative components of 'NCAA Football' contain sufficient expressive transformation to merit First Amendment protection."
Hart holds the Scarlet Knights' records for career attempts, completions and interception. He led the team to the Insight Bowl during his senior season, Rutgers' first bowl game since 1978.
"NCAA Football" was launched in 1993 as "Bill Walsh College Football." The latest edition of the game is scheduled to be released July 9.
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