By Ellen Rugeley
Ryan Hart, a former Rutgers University starting quarterback, is appealing his case against video game manufacturer Electronic Sports, Inc.
Hart, who is represented by the McIlwain & Mullen Law Firm, alleges that EA exploited his likeness and the likenesses of many similarly situated NCAA football players by using hyper-realistic virtual avatars of the aforementioned athletes in its popular “NCAA Football” games without their consent or compensation.
An appeal was filed on February 10, 2012 in the United States Court of Appeals for the Third Circuit by Timothy J. McIlwain of the McIlwain & Mullen Law Firm, on behalf of Hart. The appeal alleges that EA misappropriated and incorporated Hart’s likeness and identity in their NCAA Football game series by creating a virtual Rutgers quarterback that deliberately and explicitly replicated Hart’s actual skills, appearance, physical features, sports statistics and biographical information in order to appeal to potential consumers. EA also included a photograph of Hart throwing a pass during a Rutgers bowl game in its game “NCAA Football 2009.”
The case, Ryan Hart v. Electronic Arts, Inc., also seeks to overturn the decision of a U.S. District Court for the District of New Jersey, which recently granted summary judgment to EA on the ground that the First Amendment gives game manufacturers free rein to implement the likenesses of athletes, celebrities and other public figures for purely commercial purposes in their games.
“EA has profited greatly by unfairly exploiting Hart and other NCAA players without their consent,” McIlwain said in a statement. “A corporation cannot claim to be expressing itself under the First Amendment when it is blatantly violating player’s right of publicity by stealing their identity for profit without their permission or compensation.”
Some jurisdictions have sided with the plaintiffs in similar right of publicity violations cases, according to McIlwain. The California Court of Appeal concluded that a video game publisher violated popular rock band No Doubt’s right of publicity by including realistic, but user manipulatable, digital avatars depicting the band’s members in its “Band Hero” video game. Also, in Hilton v. Hallmark Cards, the Ninth Circuit determined that a greeting card lampooning Paris Hilton violated Hilton’s right of publicity under California Law.
“This is arguably the most important case in America today because it involves a citizen’s right to their persona and image,” he said. “There is nothing more sacred then [sic] your own identity. Whether you’re an artist, an athlete or a celebrity, a corporation’s right as an ‘individual’ should not trump the rights of the real individual… there is just no way the framers of the US Constitution intended that.”
Other organizations including the Screen Actors Guild, NFL, NHL, NBA and MLBPA are expected to submit amicus (Friend of the Court) briefs in support of Hart’s case on February 17, 2012.
McIlwain is “very encouraged” to have the case supported by these unions. “It is great to see that the NFL, NHL, NBA and MLBPA have the vision that if Ryan Hart and I lose this case, Tom Brady and Kobe Bryant are next because EA will have precedent to pay them nothing in the future.
“The court should reject the ruling and give Hart his day in court as EA’s First Amendment interests do not outweigh Hart’s right of publicity. It’s time EA compensate the NCAA players for their identities which have substantial commercial value.”
