Hart v. Electronic Arts, Inc.
717 F.3d 141 (2013)
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Rule of Law:
Under the Transformative Use Test, the First Amendment does not protect the use of a celebrity's likeness in an expressive work if the likeness is not significantly transformed and is the very 'sum and substance' of the depiction, even if the work contains other creative elements or interactive features.
Facts:
- Ryan Hart was the starting quarterback for Rutgers University's football team from the 2002 through 2005 seasons, wearing jersey number 13.
- As a Rutgers player, Hart had distinct physical attributes (6'2", 197 pounds) and wore specific accessories, including a visor and a left wrist armband.
- Due to NCAA amateurism rules, Hart was prohibited from being compensated for the use of his name or likeness in any commercial products.
- Electronic Arts, Inc. (EA) developed and sold the 'NCAA Football' series of video games, which strove for realism by including digital avatars representing real college football players.
- In the 2005 and 2006 editions of 'NCAA Football,' the default avatar for the Rutgers quarterback was player number 13 and matched Hart's physical attributes, home state, class year, and on-field accessories.
- While users could modify the avatar's appearance and some statistics, the game's default setting presented a realistic digital recreation of Hart, and certain biographical details like his home state were immutable.
Procedural Posture:
- Ryan Hart filed a class-action lawsuit against Electronic Arts, Inc. (EA) in New Jersey state court.
- EA removed the case to the United States District Court for the District of New Jersey based on diversity jurisdiction.
- After Hart filed a second amended complaint alleging a right of publicity claim, EA moved for summary judgment.
- EA argued that its use of Hart's likeness in the 'NCAA Football' video game was protected by the First Amendment.
- The District Court granted summary judgment for EA, holding that the game was a transformative work and thus constitutionally protected.
- Hart, as the appellant, appealed the District Court's grant of summary judgment to the United States Court of Appeals for the Third Circuit.
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Issue:
Does the First Amendment protect a video game's realistic use of a college football player's likeness and biographical data from a right of publicity claim under the Transformative Use Test?
Opinions:
Majority - Greenaway, Jr.
No, the First Amendment does not protect the use because it is not sufficiently transformative. A work is transformative only when the celebrity's likeness is so altered that it becomes the defendant's own expression rather than a mere depiction of the celebrity. The court adopted the Transformative Use Test, rejecting the Predominant Use Test as too subjective and the Rogers Test as inapposite. Applying the test, the court reasoned that Hart's avatar was a realistic depiction, not a transformation. The context was not transformative because the digital Hart does exactly what the real Hart was famous for: playing college football. The user's ability to alter the avatar does not make EA's use transformative, as the default avatar is a realistic depiction of Hart, which is central to the game's appeal and the 'sum and substance' of the work. Other creative elements in the game are irrelevant because the test focuses on how the celebrity's identity itself is transformed.
Dissenting - Ambro
Yes, the First Amendment protects the use because the video game, as a whole, is a transformative work. The majority erred by focusing narrowly on Hart's likeness instead of analyzing how that likeness is incorporated into the entire expressive work. Under the proper application of the Transformative Use Test, Hart's likeness is merely one of the 'raw materials' used to synthesize a larger, original work. The game's interactivity, numerous creative elements, and fictional scenarios in which users control the avatars constitute a significant transformation. The majority's approach penalizes realism and commercial success, which are not disqualifying factors under First Amendment precedent, and improperly creates a stricter standard for video games than for other expressive media like books and films.
Analysis:
This decision formally adopts the 'Transformative Use Test' within the Third Circuit for resolving conflicts between the First Amendment and the right of publicity. The court's application of the test establishes that the transformation must relate directly to the celebrity's likeness itself, not to unrelated creative elements within the larger work. This ruling significantly impacts the sports video game industry by clarifying that realistic digital recreations of athletes performing their sport are unlikely to receive First Amendment protection against right of publicity claims, even when part of a highly creative and interactive game. It sets a precedent that has been influential in subsequent litigation against video game publishers.
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