The right of publicity in college sports

By Melissa A Reinckens and Matthew Ganas

The sports-media industry has recently experienced a proliferation of litigation involving right-of-publicity claims asserted by student-athletes for the unauthorized use of their names, images and likenesses. The most highly publicised cases have been brought by former college athletes concerning sports videogames. Recent activity in two currently pending federal cases — Hart v Electronic Arts, Inc and Keller v Electronic Arts, Inc  demonstrates that college athletes’ right-of-publicity claims have the potential to dramatically alter current business models.

Hart, a former Rutgers quarterback, brought his right-of-publicity claim against Electronic Arts (EA) in October 2009, alleging that EA intentionally used his avatar in some of its ‘NCAA Football’ videogames and promotions. The New Jersey district court granted summary judgment in EA’s favor, finding that the use of Hart’s likeness was sufficiently transformative to warrant First Amendment protection and that EA’s First Amendment interests outweighed Hart’s right of publicity in his likeness.

In May 2013, the Third Circuit reversed, holding the First Amendment does not shield EA from liability for the alleged right-of-publicity violations. The Third Circuit applied the so-called transformative use test to find EA’s football videogames did not sufficiently alter Hart’s identity to provide EA with First Amendment protection. In part, the court reasoned that the videogame avatar possessed many of Hart’s physical attributes and contextual similarities, such as hair colour, skin tone and Rutgers accessories. Consequently, the Third Circuit remanded the case to the district court…

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