A while ago, I posted about litigation in the Northern District of California between college athletes and video game makers over the use of the athletes' likenesses in their games. That case is now before the Ninth Circuit.
Well, the Third Circuit, just ruled that, Ryan Hart, a quarterback for Rutgers from 2002 to 2005, can maintain a lawsuit against Electronic Arts ("EA") for misappropriation of his likeness. The Third Circuit reversed a lower court's ruling that the First Amendment (the Right to Free Speech) protected EA's depiction of amateur or college players in EA's video game.
As you can expect, the whole purpose of EA's "NCAA Football" game is to make it as close to real life as possible. In doing so, EA "copied" Mr. Hart's jersey number, height, weight, helmet visor, and other accessories worn by Mr. Hart during a game. While this may make the game more interesting for the video game consumers, it was exactly why the Third Circuit found that the First Amendment did not protect EA from Mr. Hart's lawsuit. According to the Third Circuit, EA had to show that it had somehow significantly "transformed" the identity of Mr. Hart. In deciding against EA, the Third Circuit said that: "[t]he 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. That is not transformative."
The Court in the Northern District of California agrees with the Third Circuit. Now, the question is will the Ninth Circuit also agree? If not, then the Supreme Court may take up the issue at some point to resolve the circuit split. As always, stay tuned for more.
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