Hart v. Electronic Arts, Inc.

717 F.3d 141 (3rd Cir. 2013)

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Nature of the Case

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Facts

P was a quarterback, player number 13, with the Rutgers University Football team. P was required to adhere to the National Collegiate Athletic Association's (NCAA) amateurism rules as set out in Article 12 of the NCAA bylaws. A collegiate athlete loses his or her 'amateur' status if (1) the athlete 'uses his or her athletics skill (directly or indirectly) for pay in any form in that sport,' or (2) the athlete 'accepts any remuneration or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind.' P amassed an impressive list of achievements as the starting quarterback. P holds the records for career attempts, completions, and interceptions. The team was invited to the Insight Bowl, their first Bowl game since 1978. P's participation in college football also ensured his inclusion in D's successful NCAA Football videogame franchise. D 'develops, publishes, and distributes interactive software worldwide' for consoles, cell phones, and PCs. One of the games is NCAA Football, the videogame series. New editions in the series are released annually, and 'allow users to experience the excitement and challenge of college football' by interacting with 'over 100 virtual teams and thousands of virtual players.' D's game focuses on realism and detail - from realistic sounds to game mechanics, to team mascots. The 'over 100 virtual teams' in the game are populated by digital avatars that resemble their real-life counterparts and share their vital and biographical information. In NCAA Football 2006, Rutgers' quarterback, player number 13, is 6'2' tall, weighs 197 pounds, and resembles P. Moreover, while users can change the digital avatar's appearance and most of the vital statistics (height, weight, throwing distance, etc.), certain details remain immutable: the player's home state, hometown, team, and class year. P filed suit against D for violation of his right of publicity. P alleges that (1) D replicated his likeness in NCAA Football 2004, 2005, and 2006 (complete with biographical and career statistics) and that (2) D used P's image 'in the promotion for [NCAA Football] wherein P was throwing a pass with actual footage from Rutgers University's Bowl Game against Arizona State University.' D argued that it was entitled to dismissal or summary judgment on First Amendment grounds. The court agreed and dismissed the case. P appealed.