By Richard T. Karcher, Professor of Law at Florida Coastal School of Law
On May 21, 2013, the Third Circuit Court of Appeals issued its ruling in Hart v. Electronic Arts that the First Amendment is not a defense to college players’ right of publicity claim in the context of video game use of their likenesses, thus allowing the players’ claim to proceed.
In a 62-page opinion, the court of appeals began its analysis noting that video games enjoy the full force of First Amendment protections but “[a]s with other types of expressive conduct, the protection afforded to games can be limited in situations where the right of free expression necessarily conflicts with other protected rights.” The Third Circuit determined that the most appropriate test for balancing the First Amendment against the right of publicity is the transformative use test, which focuses on “the purpose and character of the use” and asks “whether the product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” According to the court of appeals, the transformative use test requires a “circumscribed inquiry, focusing on the specific aspects of a work that speak to whether it was merely created to exploit a celebrity’s likeness.”
In determining whether college players’ “identities” are sufficiently transformed in EA’s NCAA Football game, the Third Circuit first explained that it is the combination of a player’s likeness and biographical information that identifies the digital avatar as an in-game creation of the player that must be sufficiently transformed. Then, in looking at how the identity is “incorporated into and transformed by” NCAA Football, the court of appeals concluded that “the various digitized sights and sounds in the video game do not alter or transform the [player’s] identity in a significant way.”
The Third Circuit further explained that “[i]t is no answer to say that digitizing [a player’s] appearance in and of itself works a transformative use. Recreating a celebrity’s likeness or identity in some medium other than photographs or video cannot, without more, satisfy the test; this would turn the inquiry on its head — and would contradict the very basis for the Transformative Use Test.”
Lastly, the court of appeals was not at all persuaded that the game users’ ability to alter the digital avatar’s appearance represents a transformative use of the player’s identity: “If the mere presence of the feature were enough, video game companies could commit the most blatant acts of misappropriation only to absolve themselves by including a feature that allows users to modify the digital likenesses. We cannot accept that such an outcome would adequately balance the interests in right of publicity cases.”
Courts that have held the First Amendment trumps professional athletes’ right of publicity claims in various contexts, such as fantasy league use and parody trading card use, highlight that “they are already handsomely compensated.” While the amount that players are compensated for their services is of questionable value in evaluating the First Amendment in a professional athlete’s right of publicity claim, the Third Circuit noted that it is nonetheless inapplicable to right of publicity cases involving amateur athletes:
We reject as inapplicable in this case the suggestion that those who play organized sports are not significantly damaged by appropriation of their likeness because “players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements.” (citations omitted) If anything, the policy considerations in this case weigh in favor of [the athletes]. As we have already noted, intercollegiate athletes are forbidden from capitalizing on their fame while in school.
The right of publicity claim against Electronic Arts in the O’Bannon/Keller consolidated case is pending appeal on the opposite side of the country in the Ninth Circuit Court of Appeals. The district court in that case has already ruled that the First Amendment does not trump college players’ right of publicity in the context of video game use. An affirmation of the district court’s ruling by the Ninth Circuit would pretty much put to rest the question whether the First Amendment constitutes a valid defense. And even if the Ninth Circuit were to reverse the district court, it would result in a split of circuits on this question which could ultimately be resolved by the Supreme Court. The bottom line, therefore, is that the Third Circuit’s ruling in Hart is a highly significant and ground-breaking decision in favor of college players.
