A federal judge in New Jersey District Court has dismissed the suit of Quarterback Ryan Hart who filed a suit, also seeking class action status, that Electronic Arts had appropriated his likeness without compensation. This is not the first bump the suit has taken. In September 2010, several causes of action, including unjust enrichment and conspiracy, were dismissed; however, Hart was able to file an amended complaint. Today’s dismissal closes the door in the trial court and an appeal should be expected. Particularly since other courts have entertained these cases, there is a potential for there to be an eventual split in the circuits up to the Supreme Court.
Sports fans, and those of South Park, know that colleges prevent athletes from entering into licensing deals while they play in college. However, the same leagues and universities that prevent the players from entering into licensing deals, themselves enter into licensing deals, such as with Electronic Arts. Here, Hart was an NCAA football player in an NCAA Football video game, where a virtual character with his same college jersey number, height, weight, stats, uniform, etc., appears as a playable character. Electronic Arts persuaded the court that there was a freedom of artistic expression issue which outweighed the right to control one’s publicity. Particularly persuasive to the court was that the character was a ‘starting point’ where the video game player could switch teams, appearance, stats, and so on, of that character to a myriad of combinations.
So, say a character with your exact appearance appeared in a video game: same features, hair style, weight, height, statistics, identifying markers, and so on, wearing the outfit you are best known for wearing. As long as the video game player has the *option* of making you taller or shorter, heavier or thinner, changing your clothes, changing your hair, and so on, the video game maker would not owe you a dime.