GUEST BLOG: Using Amateur Athlete’s Avatar in Video Game Could Violate Right of Publicity, Third Circuit Rules



Barry Barnett has been a Guest Blogger in the past, his Blawgletter provides great thoughts, and insights. I read his blogs regularly. Over the years Barry and I have had a number of cases together and he is an outstanding trial partner at Susman Godfrey.

Using Amateur Athlete’s Avatar in Video Game Could Violate Right of Publicity, Third Circuit Rules

Electronic Arts, Inc., makes video games, including the NCAA Football series. EA put an avatar of Ryan Hart, an ex-quarterback at Rutgers, in the series. Hart sued EA for "violating his right of publicity as recognized under New Jersey law." Hart v. Electronic Arts, Inc., No. 11-2750, slip op. 5 (3d CIr. May 21, 2013). The district court granted EA summary judgment, holding that EA had a free speech right to use the likeness and biographical information — the "identity" — of Hart.

The Third Circuit, by a 2-1 vote, reversed. It balanced EA’s first amendment rights against Hart’s interest in not having others exploit his image for commercial gain. The panel settled on the "transformative use" test of copyright law and concluded that NCAA Football used too much of Hart’s identity to obtain summary judgment on Hart’s right of publicity claim.

The dissenting judge believed "that the creative components of NCAA Football contain sufficient expressive transformation to merit First Amendment protection."

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