Ryan Hart, the quarterback for Rutgers from 2002 to 2005,
filed suit in 2009 accusing EA Sports of using his image and likeness in their
video games without his permission and without compensation. The lower court threw out his case. The Third Circuit Court of Appeals in Washington D.C. has reversed that dismissal
Hart’s right of publicity claim against EA Sports was
revived last week in a 2-1 decision by the 3rd Circuit Court of
Appeals. The District Court of New Jersey had granted summary judgment in favor
of EA Sports in September 2011, saying that EA's use of Hart's likeness was
protected as expressive speech by the First Amendment. However, Judge Greenaway, writing for the majority of the 3rd Circuit disagreed in his recent opinion stating, “We
therefore hold that the NCAA Football 2004, 2005 and 2006 games
at issue in this case do not sufficiently transform Appellant's identity to
escape the right of publicity claim and hold that the District Court erred in
granted summary judgment in favor of Appellee.”In other words, the court said what everyone already knew and as EA advertises "if it is in the game, it is in the game."
The case has been sent back to the District Court for
further proceedings. The ruling could affect a number of similar lawsuits that
are currently pending, including the O'Bannon lawsuit currently set for class certification this month in California.
More information can be found at these websites:
The 3rd Circuit’s full judicial opinion can be
found here:
