Hart v. Elec. Arts, Inc.

717 F.3d 141

Ryan HART, individually and on behalf of all others similarly situated

v. ELECTRONIC ARTS, INC., a Delaware Corporation; Does 1–50.Ryan Hart, Appellant.

No. 11–3750.

United States Court of Appeals, Third Circuit.

Argued: Sept. 19, 2012.

Opinion Filed: May 21, 2013.

Michael Rubin, Esq. [argued] Altshuler, Berzon, Nussbaum & Rubin, San Francisco, CA, Timothy J. McIlwain, Esq. McIlwain & Mullen, Hoboken, NJ, Keith A. McKenna, Esq., Montclair, NJ, for Appellant. Ryan Hart.

Elizabeth A. McNamara, Esq., [argued], Davis, Wright & Tremaine, New York, NY, Bruce S. Rosen, Esq. McCusker, Anselmi, Rosen & Carvelli, Florham Park, NJ, for Appellee Electronic Arts, Inc.

P. Casey Pitts, Esq., Michael Rubin, Esq., Altshuler, Berzon, Nussbaum & Rubin, San Francisco, CA, for Major League Baseball Players Association, Major League Soccer Players Union, NFL Players Association, NHL Players Association, and National Basketball Players Association, Amici Appellant.

Duncan W. Crabtree–Ireland, Esq., Screen Actors Guild, Los Angeles, CA, for Screen Actors Guild, Inc., American Federation of Television and Radio Artists, AFL–CIO, and Luminary Group LLC, Amici Appellant.

Nathan E. Siegel, Esq., Levine, Sullivan, Koch & Schulz, Washington, DC, for Advance Publications, Inc., A & E Television Networks, Inc., Activision Blizzard, Inc., Bloomberg News, Capcom U.S.A., Inc., Comic Book Legal Defense Fund, Daily News, L.P., Dow Jones Local Media Group, ESPN, Inc., First Amendment Coalition, Forbes, Inc., Freedom Communications, Inc., Gannett Co., Inc., Gawker Media, Hybrid Films, Inc., The McClatchy Company, National Public Radion, Inc., The New York Times Co., North Jersey Media Group Inc., Pennsylvania Newspaper Association, Press–Enterprise Company, The Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Square–Enix, Inc., Take–Two Interactive Software, Inc., THQ, Inc., The Washington Post Co., and Wenner Media, Amici Appellee.

Douglas E. Mirell, Esq., Eric B. Schwartz, Esq., Loeb & Loeb, Los Angeles, CA, Motion Picture Association of America, Inc., Amicus Appellee.

Julie A. Ahrens, Esq. Stanford Law School Stanford, CA, for the Organization for Transformative Works, International Documentary Association, International Documentary Association, Digital Media Law Project, Irene Calboli, Danielle M. Conway, Jon M. Garon, Deborah R. Gerhardt, Greg Lastowka, Mark A. Lemley, Yvette Joy Liebesman, Phillip R. Malone, Jason M. Schultz, Jessica Silbey, Amici Appellee.

Before: AMBRO, GREENAWAY, JR., and TASHIMA ^*, Circuit Judges.

OPINION

GREENAWAY, JR., Circuit Judge.

In 2009, Appellant Ryan Hart (“Appellant” or “Hart”) ¹ brought suit against Appellee Electronic Arts, Inc. (“Appellee” or “EA”) for allegedly violating his right of publicity as recognized under New Jersey law. Specifically, Appellant's claims stemmed from Appellee's alleged use of his likeness and biographical information in its NCAA Football series of videogames. The District Court granted summary judgment in favor of Appellee on the ground that its use of Appellant's likeness was protected by the First Amendment. For the reasons set forth below, we will reverse the grant of summary judgment and remand the case back to the District Court for further proceedings.

I. Facts

Hart was a quarterback, player number 13, with the Rutgers University NCAA Men's Division I Football team for the 2002 through 2005 seasons. As a condition of participating in college-level sports, Hart was required to adhere to the National Collegiate Athletic Association's (“NCAA”) amateurism rules as set out in Article 12 of the NCAA bylaws. See, e.g., NCAA, 2011–12 NCAA Division I Manual § 12.01.1 (2011) (“Only an amateur student-athlete is eligible for inter-collegiate athletics participation in a particular sport.”). In relevant part, these rules state that a collegiate athlete loses his or her “amateur” status if (1) the athlete “[u]ses his or her athletics skill (directly or indirectly) for pay in any form in that sport,” id. § 12.1.2, or (2) the athlete “[a]ccepts 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,” id. § 12.5.2.1. ² In comporting with these bylaws, Hart purportedly refrained from seizing on various commercial opportunities.³ On the field, Hart excelled. At 6'2?, weighing 197 pounds, and typically wearing a visor and armband on his left wrist, Hart amassed an impressive list of achievements as the Scarlet Knights' starting quarterback. As of this writing, Hart still holds the Scarlet Knights' records for career attempts, completions, and interceptions.⁴ Hart's skill brought success to the team and during his senior year the Knights were invited to the Insight Bowl, their first Bowl game since 1978.

Hart's participation in college football also ensured his inclusion in EA's successful NCAA Football videogame franchise. EA, founded in 1982, is “one of the world's leading interactive entertainment software companies,” and “develops, publishes, and distributes interactive software worldwide” for consoles, cell phones, and PCs. (App. at 529–30.) EA's catalogue includes NCAA Football, the videogame series at issue in the instant case. The first edition of the game was released in 1993 as Bill Walsh College Football. EA subsequently changed the name first to College Football USA (in 1995), and then to the current NCAA Football (in 1997). 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.” ( Id. at 530.)

A typical play session allows users the choice of two teams. “Once a user chooses two college teams to compete against each other, the video game assigns a stadium for the match-up and populates it with players, coaches, referees, mascots, cheerleaders and fans.” ⁵ ( Id.) In addition to this “basic single-game format,” EA has introduced a number of additional game modes that allow for “multi-game” play. ( Id. at 530–31.) Thus, with the release of NCAA Football 98, EA introduced the “Dynasty Mode,” which allows users to “control[ ] a college program for up to thirty seasons,” including “year-round responsibilities of a college coach such as recruiting virtual high school players out of a random-generated pool of athletes.” ( Id. at 531.) Later, in NCAA Football 2006, EA introduced the “Race for the Heisman” (later renamed “Campus Legend”), which allows users to “control a single [user-made] virtual player from high school through his collegiate career, making his or her own choices regarding practices, academics and social activities.” (Id. at 531–32.)

In no small part, the NCAA Football franchise's success owes to its focus on realism and detail—from realistic sounds, to game mechanics, to team mascots. ⁶ This focus on realism also ensures that 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. Thus, for example, in NCAA Football 2006, Rutgers' quarterback, player number 13, is 6'2? tall, weighs 197 pounds and resembles Hart. 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, home town, team, and class year.

Appellant filed suit against EA in state court for, among other things, violation of his right of publicity. Appellant's first amended complaint, filed in October 2009, alleged that Appellee violated his right of publicity by appropriating his likeness for use in the NCAA Football series of videogames. Appellee subsequently removed the action to federal court, and the District Court subsequently dismissed all but one of the claims.⁷ Thereafter, on October 12, 2010, Appellant filed his second amended complaint, again alleging a claim pursuant to the right of publicity based on Appellee's purported misappropriation of Appellant's identity and likeness to enhance the commercial value of NCAA Football. Specifically, Appellant alleges that (1) Appellee replicated his likeness in NCAA Football 2004, 2005, and 2006 (complete with biographical and career statistics) ⁸ and that (2) Appellee used Appellant's image “in the promotion for [ NCAA Football ] wherein [Appellant] was throwing a pass with actual footage from Rutgers University's Bowl Game against Arizona State University.” ⁹ (App. at 370.)

On November 12, 2010, Appellee filed a motion to dismiss the claim pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, summary judgment pursuant to Federal Rule of Civil Procedure 56(c). While conceding, for purposes of the motion only, that it had violated Appellant's right of publicity, Appellee argued that it was entitled to dismissal or summary judgment on First Amendment grounds. Hart v. Elec. Arts, Inc., 808 F.Supp.2d 757, 766 (D.N.J.2011). The motion was accompanied by a Statement of Undisputed Fact and various supporting materials, including declarations. Appellant opposed the motion, arguing that “discovery [was] still in it's [sic] infancy.” (App. at 9.) The court below rejected this argument, noting that Appellant had “fail[ed] to identify how discovery would assist the Court in deciding this speech-based tort case.” Hart, 808 F.Supp.2d at 764. The District Court then construed the motion as one for summary judgment, citing its intent to “rely on the affidavits and exhibits submitted by the parties,” id., and ruled in favor of Appellee, holding that NCAA Football was entitled to protection under the First Amendment. Appellant timely appealed, arguing that the District Court erred in granting summary judgment prematurely and, in the alternative, erred in holding that NCAA...