Using an Athlete’s Image for Video Game Not Free Speech

Last Tuesday, the U.S. Court of Appeals for the Third Circuit ruled that the depiction of Ryan Hart (a college football player) in a video game was not protected by the First Amendment right to free speech. To acquire First Amendment protection, the video-game manufacturer, Electronic Arts Inc., had to prove that it had transformed Hart’s identity to a certain degree.

“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,” wrote Judge Joseph A. Greenaway Jr., for the majority. ”This is not transformative.”

The Right of Publicity blog thinks this makes perfect sense,

This of course makes perfect sense, as the objective in sports video game programming is to make things as realistic as possible.  In other words, the goal is to transform as little as possible.

Hmmm, if the goal of video games is to transform “as little as possible,” I wonder what this does to the Lion Tattoo case? (Yes, I know that’s a copyright claim situation but a keen reader will note that transformativeness is dispositive in copyright cases as well.)

Via The WSJ.

Tags: Art Law, college football, commercial use, eai, film, first amendment, Free Speech, photography, right of publicity, video, video games