Hart v. Electronic Arts, Inc.
717 F.3d 141
| 3rd Cir. | 2013Background
- Hart, Rutgers University quarterback (1999-2005), alleged EA used his likeness and biographical info in NCAA Football games in violation of New Jersey right of publicity.
- NCAA bylaws impose amateurism rules; players may not exploit their name or image for pay, tying to Hart’s arguments about unauthorized commercialization.
- EA’s NCAA Football series presents realistic depictions of teams/players, including over 100 teams and biographical data, with avatars resembling real athletes like Hart.
- Hart’s likeness appears in NCAA Football 2001, 2005, 2006 (with biographical stats) and in promotional footage; Rutgers’ #13 Hart footprint is central to the depiction.
- District Court granted summary judgment for EA, holding NCAA Football protected by the First Amendment; Hart appealed, arguing premature/incorrect protection.
- This case involves a federal appellate review of whether First Amendment interests shield misappropriation of identity in a video game context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether video games are protected by the First Amendment in right of publicity cases. | Hart argues First Amendment does not shield misappropriation of identity. | EA contends NCAA Football is expressive and protected. | Yes; video games are protected by the First Amendment. |
| Which balancing framework governs the right of publicity vs. First Amendment in this context. | Hart supports a transformativist approach emphasizing the identity’s transformation. | EA favors a different framework; but the court analyzes available tests. | Transformative Use Test adopted as proper framework. |
| Whether the Transformative Use Test sufficiently transforms Hart’s identity in NCAA Football. | Hart’s likeness plus authentic biographical context is not sufficiently transformed. | EA argues interactive and contextual elements transform the work. | NCAA Football fails to sufficiently transform Hart’s identity; remand for trial. |
| Whether in-game avatar alterations by users can render the work transformative. | Hart contends user alterations could transform the identity sufficiently. | EA argues interactive customization could be transformative. | Alterations alone do not transform; the work’s overall expression weighs against transformation. |
| Whether the 2009 photograph in NCAA Football 2009 affects the transformative analysis. | Hart argues it contributes to misappropriation. | EA contends it is a fleeting montage element and not transformative. | Photograph in montage is fleeting and does not affect the overall transformative assessment. |
Key Cases Cited
- Brown v. Entm't Merchs. Ass’n, 131 S. Ct. 2729 (2011) (video games protected as expressive works)
- Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) (balancing right of publicity vs. First Amendment; entire act not protected)
- Comedy III Prods., Inc. v. Gary Saderup, Inc., 106 Cal.Rptr.2d 126, 21 P.3d 797 (Cal. 2001) (transformation test for right of publicity)
- Winter v. DC Comics, 134 Cal.Rptr.2d 634, 69 P.3d 473 (Cal. 2003) (transformative elements in fictional characters)
- Kirby v. Sega of Am., Inc., 50 Cal.Rptr.3d 607, 144 Cal.App.4th 47 (Cal. App. 2006) (transformative use in video games)
- ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003) (collage with significant transformative elements)
- No Doubt v. Activision Publ’g, Inc., 192 Cal.App.4th 1018, 122 Cal.Rptr.3d 397 (Cal. App. 2011) (avatar transformations in Band Hero case)
- Guglielmi v. Spelling-Goldberg Prods., 160 Cal.Rptr. 352, 603 P.2d 454 (Cal. 1979) (early right of publicity balancing framework)
- Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981) (implications of impersonation on publicity rights)
- Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959 (10th Cir. 1996) (parody and transformative use in publicity)