Monday, September 12, 2011

Ryan Hart's federal lawsuit against Electronic Arts dismissed

Electronic Arts, publisher of the NCAA Football and NCAA Basketball video games, has been sued by various former college players who argue that these video games have featured the players' likenesses without the players' permission.  The "likenesses" have varied by game, but normally include reference to the player's number, position, skills/talents, hometown, and a digital representation of his height, weight and race/ethnicity, but not his name.  Even without the players' name, it is usually clear to the typical fan of a team as to whom the digital players are referring.

U.S. District Judge Freda Wolfson, who in 2002 was nominated by President George W. Bush to the U.S. District for the District of New Jersey, has just dismissed a lawsuit brought by former Rutgers player Ryan Hart against EA.  The judge reasoned that the First Amendment and its protection of free speech (and significant transformative elements) empowered EA to create digital representations of the players.

The dismissal by no means signals that similar lawsuits, such as Ed O'Bannon's class action lawsuit against the NCAA, will also fail, especially since those lawsuits have been brought in other jurisdictions and since they raise other types of claims, including those based in antitrust law.  Still, a defense based on the First Amendment to use college players' identities does appear bolstered by Wolfson's dismissal.

Here's IGN on the news:
Hart, a former Rutgers player, accused EA of using his name and likeness in the NCAA Football series without his knowledge or consent, suing the company in 2009. But U.S. District Judge Freda Wolfson has ruled that the likeness is permissible under the first amendment, and has dismissed the case.
EA's lawyer Elizabeth McNamara said the decision "validates Electronic Arts' rights to create and publish its expressive works." Hart's lawyers have yet to comment publicly.
This case is one of many currently pending against the publisher in relation to likeness issues in NCAA titles, largely stemming from players' wishes to be compensated for their inclusion in the games. NCAA Football 12 released in July for PS3 and Xbox 360.

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