A former quarterback was granted one last play by a federal judge from the District of New Jersey in a legal dispute over whether a video game maker unjustly utilized his likeness for commercial gain.
Specifically, the court gave the plaintiff Ryan Hart, a former quarterback at Rutgers University, a chance to amend his right to publicity claim, while dismissing all remaining claims with prejudice.
In his lawsuit, Hart claimed that Electronic Arts, Inc. advertised and sold products bearing his identity and likeness from the years in which he played as a quarterback on the Rutgers football team.
Specifically, the plaintiff alleged violations of his right of publicity and the New Jersey Consumer Fraud Act as well as unjust enrichment, and conspiracy claims based on the defendant’s use of the plaintiff’s image in its NCAA Football video game series for the years of 2004, 2005 and 2009.
Hart further identified a set of commonalities between himself and the virtual Hart:
“a. I was listed as standing six (6) feet and two (2) inches tall, the same height as the ‘virtual’ Rutgers QB in the NCAA Football game versions in question;
b. I weighed one hundred ninety-seven pounds (197 lbs.), the same weight as the ‘virtual’ Rutgers QB in the NCAA Football game versions in question;
c. My Jersey number was 13, the same as the ‘virtual’ Rutgers QB in the NCAA Football game versions in question;
d. I wore a left wrist band, the same as the ‘virtual’ Rutgers QB in the NCAA Football game versions in question; and
e. I wore a helmet visor, the same as the ‘virtual’ Rutgers QB in the NCAA Football game versions in question.”
Nevertheless, the defendant moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). Addressing the plaintiff’s right to publicity claim first, the court noted that the plaintiff must satisfy the commercial purpose requirement; i.e. that the defendant “used his likeness to increase its sales of the video games, for example.”
The plaintiff met enough of a threshold in meeting this requirement that the court was willing “to afford the plaintiff the opportunity to file a second amended complaint. In so ruling, the court is not holding that the plaintiff’s proposed allegations are sufficient as a matter of law. Rather, the court merely concludes that the sort of allegations the plaintiff proposes suggest that an amendment may not be futile.”
Turning to the plaintiff’s argument that his rights under the NJCFA had been violated, the court found that Hart is not a “consumer” and, thus, does not have standing. It dismissed that claim with prejudice.
As to the plaintiff’s civil conspiracy claim, the defendant argued that the claim “must be dismissed for failure to allege that two parties agreed to conspire.”
The court agreed.
“The plaintiff is correct that an agreement may be proven by circumstantial evidence, but he has failed to allege any agreement to inflict a wrong or injury. His only allegation is that the defendant, the NCAA, and the CLC agreed not to license his likeness. For this reason, granting the plaintiff leave to amend his conspiracy claim would be futile and his claim is, therefore, dismissed with prejudice.”
Ryan Hart v. Electronic Arts, INC., and John Does; D.N.J.; Civil Action No. 09-5990, 2010 U.S. Dist. LEXIS 99622; 9/22/10
Attorneys of Record: (for plaintiffs) Keith A. Mckenna, Mckenna Mcllwain, LLP, Montclair, NJ. (for defendant) Bruce S. Rosen, Mccusker, Anselmi, Rosen, Carvelli & Walsh, PC, Florham Park, NJ.
