New Developments in using a Celebrity’s Image and Likeness

Recently, the Third Circuit Court of Appeals (which oversees Delaware, New Jersey, Pennsylvania and the Virgin Islands), has revived former Rutgers University quarterback Ryan Hart’s (“Hart”) lawsuit against video game maker Electronic Arts (“EA”), allowing Hart to pursue allegations that EA misappropriated his likeness for the popular video game NCAA Football.  Simply stated, the characters in the video game have some level of resemblance to the image and likeness of certain NCAA football players, and Mr. Hart (while not named in the video game) objected to the use of his image and likeness in the game without authorization. The protection of one’s image and likeness is typically protected under the laws of each State and is not a federal right (although these matters do get into Federal Court through diversity jurisdiction), and the majority view is one needs consent to use another’s image and likeness for any purpose.  This significant appellate decision overturns an earlier ruling by the U.S. District Court of New Jersey, which held that the First Amendment insulated EA’s use of a college athlete’s likeness in its video games from liability.  The lower court reasoned that the NCAA Football video games inclusion of additional creative elements unrelated to the image and likeness of a player avatar, as well as features that enable users to alter the avatars appearances supported First Amendment protection as a protected work of free expression.

The court decided to apply the “Transformative Use” test in order to balance the competing interests.  This test, which finds its origin in copyright, requires the court to ask whether “the product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.”   This test not only includes visual and physical attributes, but other information, such as biographical information of the celebrity.

In determining whether Hart’s image was sufficiently transformed, the court analyzed whether the game and its creative features transformed Hart’s protected likeness into a fair use.  The court concluded that the “digital Ryan Hart does what the actual Ryan Hart did while at Rutgers [play football]…This is not transformative; the various digitized sights and sounds [also contained] in the video game do not alter or transform [Hart’s] identity in a significant way.” In assessing to what extent the ability to alter a digital avatar (as a player of the video game can change a players hair color, height, etc.) represents a transformative use, the court noted that the “ability to modify the avatar counts for little where the appeal of the game lies in users’ ability to play ‘as, or alongside’ their preferred players to teams.”  This is a major victory for professional athletes, entertainers and other celebrities who wish to protect the use of their image and likeness by making clear that there are limits to the protections of the First Amendment’s guarantee of freedom of expression.

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2013 Bradley Legal Group, P.A