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…
If you are registered and logged in to the site, click on the link below to read the rest of the DLA Piper briefing. If not, please register or sign in with your details below.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from DLA Piper
News from The Lawyer
Briefings from DLA Piper
Health Alert — Robinson v Ng; Dr A v Health District; Health Practitioner Regulation Legislation Amendment Bill 2014; and more
DLA Piper has released the 24 November 2014 issue of its Health Alert, which focuses on judgments, legislation and reports in the health sector.
Food and Beverage News and Trends — advocates of GMO labelling vow to continue fight even after electoral losses; and more
This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.
Analysis from The Lawyer
Regulators are ramping up the pressure in the aftermath of recession, leaving firms to compete for compliance and restructuring work
Shearman & Sterling is making its presence felt in the City, squaring up to magic circle firms and looking to muscle in on key relationships. Private equity house Bridgepoint is one outfit that has had its head turned by the US firm.