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First Amendment Defeats Right of Publicity Claims Against Electronic
Arts’ NCAA Football Video Games
By Elizabeth A. McNamara, Christopher J. Robinson, and Samuel M. Bayard
September 12, 2011
On Sept. 9, 2011, Judge Freda Wolfson of the United States District Court for the
district of New Jersey issued a 67 page opinion that is not only the latest in a series of
decisions involving Electronic Arts’ (EA) sports video games but is also a significant
contribution to the law on the interplay between the First Amendment and the right of
publicity. In Hart v. Electronic Arts, Inc., Civil Action 09-cv-5990, Judge Wolfson granted
summary judgment for EA on the claims of a putative class of NCAA football players
that EA had misappropriated their likeness and identity for a commercial purpose in
violation of New Jersey law. The Court found that defendant’s First Amendment right to
free expression outweighed plaintiff’s right of publicity.
Plaintiff Ryan Hart, a former quarterback for Rutgers University, had brought suit in
Superior Court, New Jersey on behalf of himself and others similarly situated alleging,
inter alia, that EA had violated his right of publicity by misappropriating his likeness as a
virtual player in four editions of EA’s NCAA Football video game. After EA removed to
Federal Court, it moved to dismiss. Judge Wolfson granted the motion, but gave Hart
leave to file an amended complaint to allege additional facts in support of his right of
publicity claim.
The amended complaint alleged that EA misappropriated Hart’s likeness by including in
several editions of the game a virtual Rutgers player from his home state, bearing his
jersey number, incorporating his physical attributes (such as height, weight, hair color
and style) and preferences (wrist band, helmet visor), as well as his skills (such as his
speed and agility rating and passing accuracy, all derived from his published season
statistics). Hart argued that the games’ commercial value derived from the wholesale
appropriation of the individual players’ identity and the resulting “realism” of the games.
He further argued that the use of a photograph of Hart in a photomontage in the game
constituted an unauthorized promotional use of his image.
Solely for purposes of its summary judgment motion, EA conceded that it used Hart’s
likeness within certain versions of NCAA Football. It argued, however, that as
expressive speech, the games should be afforded full First Amendment protection,
which here outweighed the plaintiff’s publicity interests.
The Court agreed. In an especially thorough and scholarly opinion, the Court began by
walking through the distinction between commercial and expressive speech and, relying
on the recent Supreme Court decision in Brown v. Entertainment Merchants Ass’n1,
concluded that the games, like other forms of entertainment, were expressive. The
photograph did not constitute promotion or advertising “because this photograph is part
of the video game itself, the commercial transaction has already taken place.” To
