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A New Jersey federal court has thrown out a class action lawsuit against Electronic Arts led by a former Rutgers University quarterback who alleged his publicity rights were infringed in the video game “NCAA Football.”
In making the decision, New Jersey judge Freda Wolfson referred to a recent Supreme Court decision that struck down California’s law banning the sale of violent video games to children as buttressing the idea that video games qualify for significant First Amendment protection.
The 2009 class action lawsuit led by former Rutgers QB Ryan Hart against EA is one of many disputes in a legal hot area that balances an individual’s right to protect their likeness from commercial exploitation with an entertainment studio’s right to engage in free speech.
In the past few years, this domain has seen a growing number of high-profile lawsuits. For instance, in the film world, a former Iraq war veteran is suing the makers of the Oscar-winning The Hurt Locker for allegedly basing the film on his life. In the TV world, a number of professional basketball players unsuccessfully attempted to stop the VH1 reality show Basketball Wives over purported publicity rights infringements. And in the video game world, bands such as No Doubt and Maroon 5 have gone to war with a video game publisher for using band member avatars in ways not appreciated by the plaintiffs.
So far, the results of these cases have been mixed. In some instances, courts have found that creative expression trumps the publicity infringement claims. At other times, courts have been reluctant to apply the First Amendment to defeat these suits. The video game industry, in particular, has been bedeviled here, not just in the No Doubt case, but also in a class action brought by a former NCAA athlete named Samuel Keller against EA in the Ninth Circuit.
But in a long and detailed decision published on Friday, a New Jersey federal court has gone pretty far in handing video game publishers a legal victory by ruling hat EA’s “right to free expression outweighs plaintiff’s right of publicity.”
In doing so, Judge Wolfson relies on the U.S. Supreme Court’s decision in Brown v. Entertainment Merchants Association, a ruling that noted that video games communicate ideas and social messages through both familiar literary devices and novel ones such as a player’s interaction with the virtual world.
Once Judge Wolfson determines that video games have as much creative expression — and thus First Amendment protection — as traditional media such as books, plays, and movies, the question moves to whether the game in question is a transformative fair use of plaintiffs’ publicity rights.
In “NCAA Football,” college football teams are identifiable by name and virtual players are identifiable by jersey number and position. Further, users can edit game data to provide players with surnames or they can download custom rosters created by other users that seek to replicate actual current and former football team rosters. Lastly, users can also control the features of a virtual player’s attributes and abilities such as speed, height, weight, and passing accuracy.
The judge finds there to be a lot of creative elements here transforming the core protected image of a former NCAA athlete, including the surrounding game virtual environment like stadiums, coaches, sound effects, music, and commentary. Judge Wolfson is also impressed that EA’s artists allowed users to alter the game characters. She essentially deems this interactive element to be envisioned for protection by the First Amendment and recently supported by the U.S. Supreme Court.
Here’s the judge’s full decision:
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