* Ex-Rutgers quarterback Hart may challenge use of image
* Activision, Take-Two, media companies supported EA
By Jonathan Stempel
May 21 (Reuters) - 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, 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, one of the nation’s best-selling video games.
The panel said EA did not “sufficiently transform” Hart’s identity or likeness for the 2004-2006 versions of the game, 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, which rejected Hart’s effort to assert greater control over the use of his name and likeness.
It could also affect a similar case pending before the 9th U.S. Circuit Court of Appeals, in which EA appealed a 2010 lower court ruling in favor of former Arizona State University quarterback Samuel Keller over the use of his image.
“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.
EA spokesman John Reseburg said the Redwood City, California-based company intends to seek further court review.
While many college athletes receive scholarships, the National Collegiate Athletic Association has strict rules prohibiting them from sharing in the many millions of dollars that their schools receive from television and licensing deals.
Writing for the majority, Greenaway recognized that various elements of NCAA Football were not tied directly to reality, and even let players create an alternative reality, such as by altering players’ height, weight, hair, or athletic prowess.
But he said developers of sports games also seek to attract the respective fan bases, and that doing so involves “realistic representations” of teams and players.
“Games such as NCAA Football permit users to recreate the setting of a bitter defeat and, in effect, achieve some cathartic readjustment of history; realistic depictions of the players are a necessary element,” he wrote.
Circuit Judge Thomas Ambro dissented, despite expressing sympathy with amateur athletes like Hart who, unlike their active professional counterparts, would not get paid when their images are used in video games.
“My colleagues penalize EA for the realism and financial success of NCAA Football, a position I find difficult to reconcile with First Amendment protections traditionally afforded to true-to-life depictions of real figures and works produced for profit,” Ambro wrote.
“Were this case viewed strictly on the public’s perception of fairness, I have no doubt Hart’s position would prevail,” he added.
According to court papers, Hart’s appeal drew support from players unions for all four major U.S. professional sports, as well as the Screen Actors Guild and the AFL-CIO.
EA drew support from content providers including rivals Activision Blizzard Inc and Take-Two Interactive Software Inc, Walt Disney Co’s ESPN, Gannett Co and New York Times Co.
In the case pending before the 9th Circuit, U.S. District Judge Claudia Wilken in Oakland, California had in 2010 found EA’s depiction of Keller was not a “transmogrification” that would entitle the company to protection.
The 9th Circuit heard oral arguments in that case last July.
EA shares closed up 18 cents at $21.97 in Tuesday trading on the Nasdaq.
The case is Hart et al v. Electronic Arts Inc, 3rd U.S. Circuit Court of Appeals, No. 11-3750.