Hart v. Electronic Arts, Inc.
101 U.S.P.Q. 2d (BNA) 1561
D.N.J.2011Background
- Hart, a former college football player, sues EA for misappropriation of his likeness in NCAA Football games (2004, 2005, 2006, 2009).
- EA removed Hart’s initial complaint and later moved to dismiss; the court allowed amendment focusing on the right of publicity and First Amendment defenses.
- Hart alleges the games depict a virtual player modeled after him, with attributes drawn from his Rutgers/football biography and statistics.
- Hart’s Second Amended Complaint attaches game screenshots and Rutgers media guide materials to support misappropriation claims.
- Court treats EA’s motion as a motion for summary judgment and weighs First Amendment defenses against Hart’s right of publicity, under New Jersey law.
- G.D. v. Kenny and recent developments post-date the prior ruling, informing the First Amendment balance in misappropriation cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether First Amendment protects EA's use of Hart's likeness against a right of publicity claim | Hart's right of publicity should prevail; the game uses Hart’s likeness for commercial gain | EA's use is expressive and entitled to protection; Hart’s claim is limited by First Amendment | Yes; EA's First Amendment defense applies to Hart's claim |
| Whether NCAA Football is protected as non-commercial or commercial speech | Game use is commercial exploitation of Hart's likeness | Game is an expressive work, not commercial speech, thus protected | Protected as expressive, not commercial speech |
| Which balancing test applies (Transformative vs Rogers) to weigh publicity vs First Amendment rights | Transformative test should govern, balancing more protective of Hart | Rogers test (or its variants) should be used; Hart’s use is linked to the game | Transformative test preferred, but both tests would yield protection for EA on these facts |
| Whether Hart sufficiently pled the elements of misappropriation given the First Amendment defense | Allegations show specific attributes mirrored in the game | Allegations insufficient without broader context; reliance on earlier pleading | Hart’s allegations are sufficient; EA still prevails on First Amendment defense |
Key Cases Cited
- Brown v. Entertainment Merchants Ass'n, 131 S. Ct. 2729 (U.S. 2011) (video games receive First Amendment protection)
- Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (U.S. 1977) (First Amendment limits on misappropriation when entire act is used)
- Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (Cal. 2001) (transformative use balancing in right of publicity cases)
- Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) (Lanham Act/right of publicity balancing framework; relevance/misleading inquiry)
- G.D. v. Kenny, 205 N.J. 275, 15 A.3d 300 (N.J. 2011) (New Jersey misappropriation/First Amendment balance explicit in state high court)