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Third Cir. Embraces 'Transformative Use' As Defense Against Publicity Right Claim
In a case of first impression, a split panel of the U.S. Court of Appeals for the Third Circuit restored a cause of action by a former college football player who says his likeness was appropriated without his consent for use in a video game. In so holding, the appeals court panel reversed a New Jersey federal district court that had dismissed the ex-player's suit on the ground that video games are afforded First Amendment protections as expressive speech. The Third Circuit agreed that video games enjoy First Amendment protections, but said intellectual property rights could impose limits on those free speech rights.
In Hart v. Electronic Arts Inc., 11-3750, the Third Circuit on a 2-1 vote said that Ryan Hart, who played quarterback for Rutgers University in 2004 and 2005, could bring a right of publicity claim against Electronic Arts over its NCAA Football video game. Hart filed the suit as a purported class action. He alleges that the video-game maker violated his right of publicity by featuring a player with his jersey number, 13; his height and weight; and his token left-hand wristband.
Because neither the Third Circuit nor the New Jersey courts had a 'definitive methodology for balancing the tension between the First Amendment and the right of publicity, we are presented with a case of first impression,' said Third Circuit Judge Joseph A. Greenaway Jr. for the majority.
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