Publicity Claim Over Video Game Could Be Replead

Former Rutgers University star quarterback Ryan Hart got another shot at suing video game company Electronic Arts Inc., which allegedly earned billions by exploiting his persona and that of other college football stars. A federal judge in the District of New Jersey recently dismissed Hart's case but gave him 20 days to file an amended complaint to beef up one of his claims: that Electronic Art, based in Redwood City, CA, infringed on his right of publicity.

Right of Publicity Not Plead, Judge Says

Hart ' who played for the Scarlet Knights from 2002 to 2005, holds the university's record for passing attempts, completions and interceptions and is second to Mike Teel on touchdowns and passing yardage ' alleges that Electronic Arts made improper use of his identity and likeness in the 2004, 2005 and 2009 versions of its popular NCAA Football game. Hart's complaint, in Hart v. Electronic Arts, Inc., 09-cv-5990, also alleged unjust enrichment, conspiracy and violation of the New Jersey Consumer Fraud Act, and is a putative class action on behalf of “all athletes whose unauthorized images were used by Defendant for sale of products bearing the identity and likeness of Plaintiff in disregard of the rights of Plaintiff.”

United States District Judge Freda L. Wolfson dismissed all four counts, but the dismissal of the publicity rights claim was without prejudice and came with a 20-day window to refile. That meant that Hart's lawyer, Timothy McIlwaine of McKenna & McIlwaine in Montclair, NJ, could flesh out the complaint by describing which of Hart's attributes appear in the video games. That information was in Hart's declaration opposing the motion to dismiss, but Judge Wolfson said she could not consider facts outside the pleading and so dismissed the publicity claim for failure to allege sufficient facts.

But the facts Hart asserted in his declaration were “of the sort recognized by New Jersey courts as stating a prima facie right of publicity claim,” Wolfson said, leading her to conclude that amending the complaint would not be futile.

Hart described one of the virtual players as sharing his height (6'2″), weight (197 lbs.) and jersey number (“13″), and wearing a left wrist band and helmet visor, as Hart says he did. The virtual player also “hail[ed] from Florida,” and Hart alleges he was the only Rutgers player who did so during those years.

The player in the 2006 version of the game also allegedly had Hart's speed and agility rating, passing accuracy and arm strength and “shows my contribution to the team and importance to total team success as identical to the actual season,” Hart alleged. Actual video footage of him throwing a pass in a bowl game against Arizona State was used to promote the video game, he added.

Commercial Purpose Needs To Be Shown

District Judge Wolfson found the assertions in Hart's brief similar to those in a case from the U.S. Court of Appeals for the Ninth Circuit. In Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974), a race car driver was allowed to sue a tobacco company for using a photograph of a race car that looked like his in a Winston cigarettes television commercial. The only differences were that the driver's facial features were not visible, the car number was changed and a spoiler with the word “Winston” was added. The appeals court said the car's distinctive decorations caused some viewers to infer the driver was the plaintiff.

The “key challenge” to Ryan Hart's allegations was that he failed to show his likeness was used for a commercial purpose, Wolfson stated. Electronic Arts cited Castro v. NYT Television, 370 N.J. Super. 282 (App. Div. 2004), which did not allow emergency room patients who had been filmed for a reality TV show to sue for misappropriation of their likenesses. But Judge Wolfson said the Castro holding was limited to media defendants and that Hart could adequately plead commercial purpose by alleging Electronic Arts used his likeness to increase its sales.

Electronic Arts has also raised a First Amendment defense. Whether it will succeed depends on whether the video game is considered commercial speech or an artistic work, said Wolfson. She declined to decide the issue at this juncture, commenting it was more suited to a motion for summary judgment.

Hart counsel McIlwaine said Electronic Arts' idea is getting you to put yourself in the shoes of real players, but the only ones they pay are big names like John Madden and Tiger Woods, who have games named after them. The company has made $4 billion from its video games, with the football games the biggest sellers, McIlwaine said.

Electronic Arts' lawyer, Elizabeth McNamara, said she was pleased with the court dismissal and “we're confident that that [remaining] claim will also be dismissed with prejudice.” McNamara is with Davis Wright Tremaine in New York. Bruce Rosen, of McCusker, Anselmi, Rosen, Carvelli & Walsh in Chatham, NJ, is Electronic Arts' local counsel.

Similar Cases in CA

Several similar cases are pending in California, and in two of them divergent decisions on the First Amendment issue are now on appeal to the Ninth Circuit. Keller v. Electronic Arts, 09-cv-1967, in the Northern District of California, found no First Amendment protection for using the likeness of Samuel Keller, who played football for Arizona State and the University of Nebraska. Keller's claims were later consolidated with those of other plaintiffs, including former UCLA Bruins basketball player Edward O'Bannon Jr., who also played for the New Jersey Nets. That suit, now called In re NCAA Student-Athlete Name and Likeness Licensing Litigation, 09-cv-1967, also asserts antitrust claims and encompasses other products such as DVDs. Co-lead class counsel Jon King, of Hausfeld LLP in San Francisco, said players' unions and the leagues deal with image rights at the professional level, but not for college players, who are not allowed to promote themselves.

The other case on appeal, a suit by football hall-of-famer Jim Brown in the Central District of California, Brown v. Electronic Arts, 09-cv-1598, was thrown out last year on First Amendment grounds.

Former Rutgers University star quarterback Ryan Hart got another shot at suing video game company Electronic Arts Inc., which allegedly earned billions by exploiting his persona and that of other college football stars. A federal judge in the District of New Jersey recently dismissed Hart's case but gave him 20 days to file an amended complaint to beef up one of his claims: that Electronic Art, based in Redwood City, CA, infringed on his right of publicity.

Right of Publicity Not Plead, Judge Says

Hart ' who played for the Scarlet Knights from 2002 to 2005, holds the university's record for passing attempts, completions and interceptions and is second to Mike Teel on touchdowns and passing yardage ' alleges that Electronic Arts made improper use of his identity and likeness in the 2004, 2005 and 2009 versions of its popular NCAA Football game. Hart's complaint, in Hart v. Electronic Arts, Inc., 09-cv-5990, also alleged unjust enrichment, conspiracy and violation of the New Jersey Consumer Fraud Act, and is a putative class action on behalf of “all athletes whose unauthorized images were used by Defendant for sale of products bearing the identity and likeness of Plaintiff in disregard of the rights of Plaintiff.”

United States District Judge Freda L. Wolfson dismissed all four counts, but the dismissal of the publicity rights claim was without prejudice and came with a 20-day window to refile. That meant that Hart's lawyer, Timothy McIlwaine of McKenna & McIlwaine in Montclair, NJ, could flesh out the complaint by describing which of Hart's attributes appear in the video games. That information was in Hart's declaration opposing the motion to dismiss, but Judge Wolfson said she could not consider facts outside the pleading and so dismissed the publicity claim for failure to allege sufficient facts.

But the facts Hart asserted in his declaration were “of the sort recognized by New Jersey courts as stating a prima facie right of publicity claim,” Wolfson said, leading her to conclude that amending the complaint would not be futile.

Hart described one of the virtual players as sharing his height (6'2″), weight (197 lbs.) and jersey number (“13″), and wearing a left wrist band and helmet visor, as Hart says he did. The virtual player also “hail[ed] from Florida,” and Hart alleges he was the only Rutgers player who did so during those years.

The player in the 2006 version of the game also allegedly had Hart's speed and agility rating, passing accuracy and arm strength and “shows my contribution to the team and importance to total team success as identical to the actual season,” Hart alleged. Actual video footage of him throwing a pass in a bowl game against Arizona State was used to promote the video game, he added.

Commercial Purpose Needs To Be Shown

District Judge Wolfson found the assertions in Hart's brief similar to those in a case from the U.S. Court of Appeals for the Ninth Circuit. In Motschenbacher v. R.J. Reynolds Tobacco Co. , 498 F.2d 821 (9th Cir. 1974), a race car driver was allowed to sue a tobacco company for using a photograph of a race car that looked like his in a Winston cigarettes television commercial. The only differences were that the driver's facial features were not visible, the car number was changed and a spoiler with the word “Winston” was added. The appeals court said the car's distinctive decorations caused some viewers to infer the driver was the plaintiff.

The “key challenge” to Ryan Hart's allegations was that he failed to show his likeness was used for a commercial purpose, Wolfson stated. Electronic Arts cited Castro v. NYT Television , 370 N.J. Super. 282 (App. Div. 2004), which did not allow emergency room patients who had been filmed for a reality TV show to sue for misappropriation of their likenesses. But Judge Wolfson said the Castro holding was limited to media defendants and that Hart could adequately plead commercial purpose by alleging Electronic Arts used his likeness to increase its sales.

Electronic Arts has also raised a First Amendment defense. Whether it will succeed depends on whether the video game is considered commercial speech or an artistic work, said Wolfson. She declined to decide the issue at this juncture, commenting it was more suited to a motion for summary judgment.

Hart counsel McIlwaine said Electronic Arts' idea is getting you to put yourself in the shoes of real players, but the only ones they pay are big names like John Madden and Tiger Woods, who have games named after them. The company has made $4 billion from its video games, with the football games the biggest sellers, McIlwaine said.

Electronic Arts' lawyer, Elizabeth McNamara, said she was pleased with the court dismissal and “we're confident that that [remaining] claim will also be dismissed with prejudice.” McNamara is with Davis Wright Tremaine in New York. Bruce Rosen, of McCusker, Anselmi, Rosen, Carvelli & Walsh in Chatham, NJ, is Electronic Arts' local counsel.

Similar Cases in CA

Several similar cases are pending in California, and in two of them divergent decisions on the First Amendment issue are now on appeal to the Ninth Circuit. Keller v. Electronic Arts, 09-cv-1967, in the Northern District of California, found no First Amendment protection for using the likeness of Samuel Keller, who played football for Arizona State and the University of Nebraska. Keller's claims were later consolidated with those of other plaintiffs, including former UCLA Bruins basketball player Edward O'Bannon Jr., who also played for the New Jersey Nets. That suit, now called In re NCAA Student-Athlete Name and Likeness Licensing Litigation, 09-cv-1967, also asserts antitrust claims and encompasses other products such as DVDs. Co-lead class counsel Jon King, of Hausfeld LLP in San Francisco, said players' unions and the leagues deal with image rights at the professional level, but not for college players, who are not allowed to promote themselves.

The other case on appeal, a suit by football hall-of-famer Jim Brown in the Central District of California, Brown v. Electronic Arts, 09-cv-1598, was thrown out last year on First Amendment grounds.