A former quarterback for the Rutgers University football team has asked the US Court of Appeals for the Third Circuit to overturn a New Jersey federal court’s dismissal of his class action lawsuit claiming that Electronic Arts, Inc. (EA) violated college football players’ publicity rights by using their likenesses and attributes in its hit videogame franchise NCAA Football. Hart v. Electronic Arts, Inc., No. 11-3750 (3d Cir. Feb. 10, 2012). Plaintiff Ryan Hart, who helmed the Scarlet Knights’ offense from 2002 to 2005, argues in a recently filed appellate brief that the district court erred in granting summary judgment in favor of EA by finding that the videogame developer’s use of athletes’ likenesses and attributes was entitled to First Amendment protection.

EA releases new NCAA Football and NCAA Basketball videogames each year to correspond with the beginning of the college football and basketball seasons, allowing gamers to assume control of their favorite college sports teams in full simulations of football and basketball games. Pursuant to a license between EA and the Collegiate Licensing Company (CLC), which is the licensing arm of the National Collegiate Athletic Association (NCAA), EA is permitted to replicate team logos, uniforms, mascots, and stadiums. EA, however, may not refer to the athletes by name, as NCAA bylaws prohibit the commercial licensing of NCAA athletes’ names, pictures, or likenesses. While the virtual players on each simulated team lack names, their attributes—including jersey numbers, positions, height, weight, skin tone, home states, and unique equipment preferences and skill sets—correspond to the real-life players on actual NCAA teams. The games’ editing features also allow users to manually input or upload team rosters so as to give unnamed characters the appropriately matched names.

Hart originally filed his class action complaint in a New Jersey state court on June 30, 2009, alleging that EA had committed unfair business practices and had violated his and other athletes’ rights of publicity under New Jersey and California law by commercially exploiting their likenesses without their authorization. EA subsequently removed the case to the US District Court for the District of New Jersey and, in November 2010, moved for summary judgment on the grounds that the First Amendment provided EA a complete defense to Hart’s claims.

On September 9, 2011, the federal court issued a ruling on the motion, concluding that EA’s use of player likenesses in NCAA Football was sufficiently “transformative” and therefore protected by the First Amendment. Hart v. Electronic Arts, Inc. No. 09-cv-5990 (D.N.J. Sept. 9, 2011). Although it noted that the decision was a “close call” because “the goal of the game is to capitalize upon the fame” of real-life players like Hart, the court nevertheless found the use transformative because (1) gamers have the ability to modify the virtual characters’ default attributes and likenesses during the course of play and (2) the game places those characters into a unique virtual setting that includes sound effects, music, and commentary, as well as simulated stadiums, athletes, coaches, and fans. The court also determined that the use of the athletes’ images and characteristics is highly relevant to a videogame about college football and that Hart had failed to demonstrate that gamers would mistakenly believe he had personally endorsed the game.

Hart appealed this decision in October 2011, and his recently filed appellate brief implores the Third Circuit to overturn the district court’s ruling, arguing that it “gives game manufacturers free rein to exploit the likenesses of athletes, celebrities, and other public figures for the purely commercial purpose of marketing and selling their games without having to compensate those individuals.” Moreover, despite gamers’ ability to change some aspects of a player’s likeness within the game, Hart argues, EA’s use is not truly “transformative” because “the purpose of the game is not to create an alternate sports universe, but to depict a particular college football team as realistically as possible.”

Two other federal cases involving the same issues are pending before the US Court of Appeals for the Ninth Circuit. See Keller v. Electronic Arts, Inc., No. 10-15387 (9th Cir.); Brown v. Electronic Arts, Inc., No. 09-56675 (9th Cir.). While Brown involves related issues in the context of professional football and EA’s ultra-successful Madden NFL franchise, Keller is another case addressing EA’s use of the First Amendment as a shield against claims that it has violated NCAA athletes’ publicity rights. The plaintiff in Keller, a former quarterback for the Nebraska Cornhuskers and the Arizona State University Sun Devils, filed a class action complaint against EA on behalf of other NCAA athletes, asserting claims of civil conspiracy, violations of the California Unfair Competition Act, breach of contract, and unjust enrichment for EA’s use of athletes’ likenesses in NCAA Football. Unlike in Hart, however, the Keller court set forth a narrow interpretation of “transformative use” in the context of a motion to dismiss, reasoning that “EA does not depict plaintiff in a different form.” Rather, the court explained, Keller “is represented as what he was: the starting quarterback for Arizona State University,” and NCAA Football’s “setting is identical to where the public found the plaintiff during his collegiate career: on the football field.” Notably, the lower court in Keller also refused to consider the videogame in its entirety in analyzing EA’s “transformative use” defense, electing instead to focus only on EA’s depiction of Keller in NCAA Football.

Arent Fox will continue to monitor these cases for further developments. Videogame and other software developers are advised to seek legal counsel during the creative process to discuss any potential legal issues. For more information, please contact the attorneys listed at right.