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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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