(CN) – Former Rutgers quarterback Ryan Hart won another shot at proving that Electronic Arts Inc. illegally used his identity in its NCAA Football video games.
U.S. District Judge Freda Wolfson in New Jersey gave Hart 20 days to amend his right-of-publicity claims against the video game maker.
Although the NCAA Football games do not name actual college players, virtual players often have the same numbers and physical attributes as real players.
Hart filed a class action last June, claiming the game used real players’ identities and likenesses without their consent.
Hart, Rutgers’ quarterback from 2002 to 2005, said his virtual counterpart lists his actual team number, height and weight, and his same “speed and agility rating,” “passing accuracy” and “arm strength.”
He said the game “allows the public to simulate the college football playing experience by stepping into the shoes of Rutgers’ QB Ryan Hart, and other football players, where fans can mimic Plaintiff’s style and movements and play against Plaintiff’s actual opponents.”
Hart also accused EA of using an actual image of him in promotional material.
EA moved to dismiss the action, claiming Hart could not prove how listing his height, weight and home state violated his right to publicity.
Judge Wolfson was not persuaded by the bulk of Hart’s claims, but gave him 20 days to amend his complaint to clearly state “what aspects of his likeness have been appropriated.”
“The touchstone of the commercial purpose requirement is whether the publication uses the plaintiff’s likeness ‘for the purpose of capitalizing upon the name by using it in connection with a commercial project,'” Wolfson wrote. “To show that the commercial purpose requirement is met here, Plaintiff would have to allege that Defendant used his likeness to increase its sales of the video games, for example.”
Wolfson said Hart’s claim that the game allowed users to mimic his style and movements, “though inartfully plead, may evoke the notion that Defendant has utilized Plaintiff’s image in order to increase sales of its video game.”
The judge dismissed Hart’s remaining claims of civil conspiracy, unjust enrichment and consumer fraud with prejudice.