By Pat Murphy
The Daily Record Newswire
BOSTON — A federal court ruling last month looks to be the breakthrough long sought by college athletes who claim they deserve a share of the hundreds of millions of dollars generated by their performances on NCAA football fields and basketball courts.
The 3rd U.S. Circuit Court of Appeals decided May 21 that the First Amendment does not bar the lawsuit of a former Rutgers quarterback who claims that EA Sports used his likeness without permission in the immensely popular “NCAA Football” series of video games.
In reviving the lawsuit of Ryan Hart, who played for Rutgers from 2002 to 2005, the court in a 2-1 decision imported the “Transformative Use Test” from California intellectual property law to balance Hart’s property interests against the right to freedom of expression enjoyed by EA Sports in producing its video games.
“We hold that the NCAA Football 2004, 2005 and 2006 games at issue in this case do not sufficiently transform [Hart’s] identity to escape the right of publicity claim,” wrote Circuit Judge Joseph A. Greenaway Jr. in Hart v. Electronic Arts.
The importance of the 3rd Circuit’s ruling in Hart cannot be downplayed, explained Professor Michael McCann of the University of New Hampshire School of Law.
“The crucial point is that these players should at least have had the opportunity to give permission for the use of their likenesses, or more likely should have been paid to appear in these video games,” said McCann, who is Sports Illustrated’s legal analyst in addition to being director of the law school’s Sports and Entertainment Law Institute.
The lead trial counsel for Hart is Timothy J. McIlwain, a solo practitioner from Hoboken, N.J. McIlwain, filed the class action in New Jersey state court in 2009, alleging that EA Sports violating Hart’s right of publicity as recognized under New Jersey law. EA Sports later removed the case to federal court. According to McIlwain, the lawsuit was the first of its kind in the nation.
McIlwain sees the 3rd Circuit’s ruling as a game-changer for NCAA athletes seeking compensation for the commercial use of their likenesses.
“There is nothing more personal than your own image,” McIlwain said. “The court decided that right outweighed EA Sports’ freedom of expression.”
Hart enjoyed a successful career at Rutgers, which runs a National Collegiate Athletic Association (NCAA) Division I Football program. Hart still holds the Scarlet Knights’ records for career attempts and completion. He capped off his college career by leading the team into the 2005 Insight Bowl, Rutgers’ first bowl game since 1978.
Alas, the Scarlet Knights were beaten by the Arizona State Sun Devils, 45-40.
During his career, Hart was bound by the NCAA’s amateur rules, which prohibited him from seizing on various commercial opportunities that came his way because of his player status.
But Hart’s participation in college football ensured his uncredited and uncompensated inclusion in EA’s successful “NCAA Football” video game franchise. According to McIlwain, the fact that the NCAA makes millions of dollars in its licensing agreements with EA Sports is at the core of an unfair system.
“When Ryan Hart chose to go to college, he signed away his ability to use his likeness under the NCAA’s amateur rules,” McIlwain said. “The NCAA has one rule for their athletes, but then it creates a licensing arm that ensures the universities are going get paid.”
The success of the “NCAA Football” franchise stems in large part from its emphasis on realism and detail. The over 100 virtual teams in the game are populated by digital avatars that don’t have names but resemble their real-life counterparts and share their vital and biographical information.
For example, in “NCAA Football 2006,” the Rutgers’ quarterback wears Hart’s number 13 and resembles the 6’2,” 197-pound former player.
A federal judge in New Jersey ruled that EA Sports’ use of Hart’s likeness was protected by the First Amendment.
In reviewing the district court, the 3rd Circuit first had to figure out what standard to apply. California courts for years have had to grapple with the issue of property rights relating to celebrity status, so is should come as no surprise that the 3rd Circuit turned to the California Supreme Court in coming up with an appropriate test.
According to a 2001 decision by the California high court, the balance between the right of publicity and First Amendment interests “turns on 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.”
The 3rd Circuit decided that California’s Transformative Use Test, derived from intellectual property law, was the best fit for Hart’s lawsuit.
Applying the test, the court concluded that Hart’s identity was not “sufficiently transformed” in EA’s video games for the First Amendment to operate as a bar to the former QB’s cause of action.
“The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game,” Judge Greenaway explained.
“This is not transformative; the various digitized sights and sounds in the video game do not alter or transform [Hart’s] identity in a significant way.”
McCann said that Hart is important in two separate respects, the first being the court’s finding that the characters in EA Sports’ video games are representations of actual college players, even though the games do not use the players’ names.
The second point, McCann said, is the court’s recognition that EA Sports’ use of graphics and other technology isn’t enough to separate an actual player’s identity rights from a player depicted in a video game.
“That’s an important legal point that we haven’t seen,” McCann said.
One lawyer particularly disappointed by the court’s ruling is Nathan E. Siegel of Levine, Sullivan, Koch & Schulz in Washington D.C. Siegel filed an amicus brief in support of EA Sports on behalf of 30 media organizations, including The New York Times and Bloomberg News.
Siegel criticized the balancing test adopted by the court as being a “recipe for litigation,” saying the standard was too subjective and vague.
“The balancing test places too much weight on the rights of celebrities to control the use of their personas, and too little weight on the First Amendment rights to produce creative media,” Siegel said.
Siegel also expressed the concern that the 3rd Circuit seemed to make no distinction between video games and traditional forms of media.
“I don’t think it makes sense that the same kind of analysis would apply to a news story, but the court’s doesn’t explain why that might not be so,” Siegel said.
McIlwain also represents NFL great Jim Brown in an ongoing class action against EA Sports in New York federal court. That suit similarly challenges the use of player likenesses in the video giant’s series of pro football video games.
A federal judge in California has rejected a First Amendment defense raised by EA Sports in a similar action brought by former Arizona State University quarterback Samuel Keller.
That case, which also involves former UCLA basketball player Ed O’Bannon, is currently before the 9th U.S. Circuit Court of Appeals.
McIlwain explained that he is in a “turf war” with other lawyers seeking to be the class representative in the EA Sports litigation. He said that the 3rd Circuit’s ruling last month places him in the “cat bird’s seat” to get class certification because it gets his case that much closer to trial.
“I’m getting a lot of calls from class action law firms that want to take me out to lunch,” McIlwain chuckled.
McIlwain said he expects EA Sports to ask the U.S. Supreme Court to review the 3rd Circuit’s decision. He also understands that a major battle over class certification is in the offing, not to mention a trial, if it ever gets that far. So McIlwain knows he still has a long way to go before ultimately winning his case.
But for now, he is savoring his client’s victory before the 3rd Circuit.
“The right to publicity is not dead,” McIlwain said.
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