SAG-AFTRA is praising a federal appellate court decision on Tuesday that may bolster performers’ ability to control the use of their likenesses and images.
The 3rd Circuit Court of Appeals said that Ryan Hart, a former star quarterback at Rutgers University, could again pursue his case against Electronic Arts, in which he alleged that the videogame giant used his likeness in the “NCAA Football” game without his permission. Their 2-1 decision reverses a district court ruling granting summary judgment to EA, concluding that their use of Hart’s likeness was protected by the First Amendment.
The case presented a conflict between New Jersey’s right of publicity law and freedom of speech. The 3rd Circuit relied on case law that weighed the extent to which the use of a person’s likeness was “transformative,” with the greater alteration earning a higher level of First Amendment protection. In this case, the 3rd Circuit judges concluded that the “digitized sights and sounds in the video game do not alter or transform [Ryan’s] identity in a significant way.” Further, they concluded that even though users could alter the digital avatar, it didn’t mean that he didn’t still have a right of publicity claim.
“If the mere presence of a feature were enough, videogame companies could commit the most blatant acts of misappropriation only to absolve themselves by including a feature that allows users to modify digital likenesses,” the judges wrote.
Duncan Crabtree-Ireland, chief administrative officer and general counsel of SAG-AFTRA, said that the 3rd Circuit’s decision “respects the creative and expressive nature of video games while also recognizing the need for proper balancing of speech rights with the rights of individuals to control the use of their own image and likeness.
“In particular, the clear and unambiguous adoption of the transformative use test by the Court should lay the groundwork for the establishment of a consistent jurisprudence that will make resolution of these issues much easier in the future.”
In a dissent, U.S. Circuit Judge Thomas Ambro wrote that “sufficient expressive transformation” takes place in the video game works to earn First Amendment protection. He said that EA’s game “transforms Hart’s mere likeness into an avatar that, along with the rest of a digitally created football team, users can direct and manipulate in fictional football games.”