Last Friday, New Jersey federal District Judge Freda Wolfson dismissed a misappropriation suit against videogame maker Electronic Arts concerning the characteristics of virtual players in its college football series NCAA Football. Ryan Hart, former quarterback for Rutgers University, claimed that EA misappropriated his likeness by including a player bearing his characteristics in the game, but Judge Wolfson ruled that the First Amendment precluded Hart’s claim.
The NCAA Football series allows gamers to simulate playing college football. Hart alleged that the mock football players in the series are designed to resemble teams’ real-life players in factors such as height, skin tone, uniform number, and playing ability (though all of these features can be altered by the gamer).
In a claim for misappropriation, also called a “right of publicity” claim, the plaintiff alleges that the defendant inappropriately used the plaintiff’s likeness for a commercial purpose. The misappropriation claim is one of the four types of claims William Prosser identified in a highly influential article from 1960 as comprising the overall right to privacy. While Prosser described “misappropriation” as being a privacy right, many states and commentators, including New Jersey, describe it as being more akin to an intellectual property right in one’s likeness.
In this case, Judge Wolfson found that EA’s First Amendment right to freedom of expression prevented Hart’s misappropriation claim from going forward. Judge Wolfson first held, consistent with the Supreme Court’s decision last year in Brown v. Entertainment Merchants Association, that video games are entitled to full First Amendment protection. Second, applying a test borrowed from the copyright context, Judge Wolfson found that the First Amendment protects NCAA Football because customizability of the virtual players renders the game “transformative” so that the default character presentation “serves as an art-imitating-life starting point for the game playing experience.” Judge Wolfson also found that EA would prevail if she applied an alternative First Amendment test borrowed from the trademark context, which looks to whether the alleged use of Hart’s image misleads the public as to the source or content of the game.