In the world of sports video gaming, Electronic Arts Incorporated rules the roost.   Electronic Arts, commonly  referred to as EA, is best known for its Madden football and FIFA soccer titles.   Another one of EA’s popular games, NCAA Football, has recently found itself at the center of some legal controversy.   The United States District Court for the District of New Jersey recently dealt with a lawsuit filed by former Rutgers quarterback Ryan Hart against EA.  Mr. Hart claimed that his right to publicity had been violated by EA’s use of his likeness in NCAA Football.

NCAA Football is an annual EA title that allows a user to control his or her favorite college football team in simulations of college gridiron clashes.  The virtual players on any given team in the game actually reflect the real-life roster of that same team.  Each virtual player’s jersey number, height, weight, physical appearance, biographical data, and skill level all reflect the attributes and characteristics of an actual player.  The interesting caveat to all this, and what has upset Mr. Hart, is that EA never sought consent or approval from any of the thousands of college athletes that it replicates in its video game.

Unfortunately for Mr. Hart, the court held that this was irrelevant.  In a lengthy opinion, Judge Wolfson granted EA’s motion for summary judgment and denied Hart’s motion to certify a class action suit against EA on behalf of all collegiate players whose likenesses appeared in NCAA Football.  The court determined that EA’s presentation was a “transformative” work and, therefore, not a violation of Mr. Hart’s right to publicity.

The widely accepted test for resolving right to publicity cases is whether the raw material or data in question has been transformed into an original creation.  The court determined here that EA’s use of player likenesses was sufficiently transformative because users of the game can physically alter every aspect of the virtual players.  Names can be added and all physical attributes can be changed.   The court reasoned that because every piece of information that reflects real world players can be altered, EA’s presentation did not violate Mr. Hart’s right to publicity.

So for the time being, EA’s mantra, “It’s in the game” rings truer than ever before, because collegiate players will be replicated in NCAA Football with or without their consent.  Should this be allowed? Presumably consumers of this game would be much less interested in buying the new version each year if the teams didn’t reflect the real world changes to rosters each season.  Should EA be allowed to profit off of the likenesses of student athletes without their consent?

— Tracy R. Hancock

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3 Responses to “It’s in the Game…” With or Without Your Consent

  1. Talor Bearman says:

    I don’t know how strong of an argument the correlation between the players actual skills and the skill ratings in the game is for a right of publicity claim, because most of these ratings are subjective.

    However, I think the strongest argument for the players is reflected in the programming of the game. First, EA Sports lets users download the rosters for all of the teams in the game. This automatically changes the players so that their names are used in addition to their likeness. Second, and perhaps an even stronger argument, the announcers for the game have already been programmed to say the names of each player. If a user decides to either download or manually add the name of the players, the announcer will then say the players name during game play (for instance, the announcer might say, “Touchdown pass by Luck” if the Stanford quarterback’s name is added). To me this seems like a strong indication that EA Sport intended to violate the players publicity rights. If they did not intend the players to imitate the real life players, why would they have paid the announcers the money to record the names of all of these players?

  2. Alex Payne says:

    Judge Wolfson’s logic is correct, only applied incorrectly. EA’s customization generally permits users to take EA’s “base” roster set, add names and players left out (quite a few for many teams) and update player ratings/equipment based on in-season progress. EA’s “base” roster set tends to reflect a collegiate athlete’s likeness, but mostly as a jumping off point for users to make that more lifelike. However, the updated rosters from year-to-year are part of, but not the main, selling point. EA tends to update parts of its game each year – including team uniforms, stadiums, team entrances, etc. It also claims to “update” gameplay. If EA stopped updating its rosters but continued to permit customization, I sincerely doubt the sector of gamers so attuned to realistic gameplay would have much of an issue re-creating the rosters for all FBS teams. I think a much better argument would be that EA merely takes public domain data – a college team’s roster – and plugs that formula into its game; the hometowns are not the same, the ratings tend to be off for most players, equipment isn’t the same, etc. – although fine tuning can be done to reflect reality, this doesn’t change the basic nature of what EA does. The real and more interesting question is whether the NCAA should give athletes a cut of their contract and royalties from sales of the game.

  3. Kevin Lumpkin says:

    That’s pretty interesting reasoning, and I’m not sure that I buy it. The default settings for every player reflect real world facts – shouldn’t that count for something? I’d be curious as to how many users actually do change player attributes.

    Under this logic, could I create an autotuning console and load every song out there into a library, giving users the option to listen to the songs straight through OR autotune them as they go?