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Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013) (full-text).
Factual Background Edit
Ryan Hart, a former quarterback for the Rutgers University football team, with many achievements, has refrained from taking various commercial opportunities. Without Ryan's consent, Ryan was included in Electronic Arts' successful NCAA Football videogame franchise. Electronic Arts, one of the world's leading interactive entertainment software companies, develops, publishes and distributes interactive software. The videogame in question has over 100 virtual teams and each is populated by digital avatars that resemble their real-life counterparts and share their biographical information.
Hart sued Electronic Arts alleging that it violated his publicity rights under New Jersey law by using his likeness and biographical information in the NCAA Football videogame series for commercial purposes.
District Court Proceedings Edit
After the plaintiff amended his complaint, the Electronic Arts moved for summary judgment, contending that plaintiff's claim for right of publicity is barred by the First Amendment. The district court found that the First Amendment right to free expression outweighed plaintiff's right of publicity and granted defendant's motion for summary judgment. The court applied the transformative use test and found that Electronic Art's actions were protected expression under the First Amendment because the NCAA Football games include a feature that allows users to modify the avatars' appearance and characteristics.
The plaintiff appealed.
Appellate Court Proceedings Edit
The appellate court determined that Hart's publicity rights outweighed First Amendment protection and reversed the lower court's grant of summary judgment and remanded the case to the district court for further proceedings. The court used the transformative use test, which required the court to begin by evaluating the degree to which the work is the creator's own expression. The court found that Electronic Art's use was not sufficiently transformative.
The court discussed various tests to determine whether an individual's right of publicity should prevail over First Amendment protections. It focused its discussion on the predominant use test, the Rogers test and the transformative use test.
- Under the Rogers test, two queries are made: (1) whether the challenged work is relevant to the underlying work; (2) if the challenged work is relevant, whether the title misleads the public as to the source of the content of the work.
- Under the transformative use test the court asks whether the product containing the celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness. "Expression" means something other than the likeness of the celebrity.
- Under the predominant use test, a product gets no First Amendment protection if it predominantly exploits the commercial value of an individual's identity, even if there is some "expressive" content in it that may qualify it as speech in other circumstances. Thus, under this test, in order to receive First Amendment protection, the use of one's likeness should be predominantly expressive, rather than commercial.
The court recognized that video games are protected by the First Amendment. However, it balanced the right to free expression against the interests in protecting the right of publicity. By analyzing the three approaches above, it found errors in predominant use test and the Rogers test, focusing its decision on the transformative use test.
The court held that the predominant use test was too subjective and arbitrary, as it calls upon judges to act as both impartial jurists and discerning art critics to determine the predominant purpose of the product. Further, it concluded that the Rogers test was inapposite in this situation, even though it may be used in trademark-like right of publicity cases. It explained that the problem with this test is that Hart's likeness was not wholly unrelated to NCAA Football and the game is not an commercial advertisement for some unrelated product.
The court then turn to the transformative test, which requires determination of whether a work is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness. The court found that the avatars in the game did exactly what Hart would do in playing in college football. Further, it reasoned that the videogame avatar had many of Hart's physical attributes, such as the same hair color, skin tone and Rutgers accessories. It also resembled Hart in vital and biological details. The court held that this was not transformative, as the digitized sights and sounds in the game did not alter or transform Hart's identity in any significant way. Any interactivity allowing the players to change the avatars' appearances was insufficient to satisfy the transformative use test.