May 21 A divided federal appeals court has
revived a lawsuit against Electronic Arts Inc by a former
Rutgers University star football quarterback, who accused it of
using his image in a video game without permission.
By a 2-1 vote, a panel of the 3rd U.S. Circuit Court of
Appeals said on Tuesday that Ryan Hart, who played for Rutgers
from 2002 to 2005, may pursue allegations that EA
misappropriated his likeness for its NCAA Football game.
The panel said EA did not "sufficiently transform" Hart's
identity or likeness, and that Hart's right of publicity
outweighed EA's right of expression under the First Amendment to
the U.S. Constitution.
"The digital Ryan Hart does what the actual Ryan Hart did
while at Rutgers: he plays college football, in digital
recreations of college football stadiums, filled with all the
trappings of a college football game," Circuit Judge Joseph
Greenaway wrote for the majority. "This is not transformative."
Tuesday's decision reversed a September 2011 ruling by U.S.
District Judge Freda Wolfson in Trenton, New Jersey, who had
found that EA's right to free expression outweighed Hart's right
to control how his name and likeness were used.
"It's a wonderful precedent-setting decision for college
athletes, professional athletes and other well-known individuals
who seek to protect their hard-earned fame and reputation
against commercial exploitation by others for profit," Michael
Rubin, who argued Hart's appeal, said in an interview.
Rubin said the case will return to Wolfson, where Hart can
pursue class-action status on behalf of others whose images may
have been misappropriated.
EA spokesman John Reseburg said the Redwood City,
California-based company intends to seek further court review.
The case is Hart et al v. Electronic Arts Inc, 3rd U.S.
Circuit Court of Appeals, No. 11-3750.