Electronic Arts has won a lawsuit brought against them by former Rutgers quarterback Ryan Hart, alleging that the company did not have the right to use Mr. Hart’s likeness in their NCAA Football games. The U.S. District Court in New Jersey ruled that EA had the rights to use Mr. Hart’s likeness on first amendment rights that superceded Mr. Hart’s right to privacy, as reported by Reuters.
In the lawsuit, which was filed in 2009, Mr. Hart pointed out that in NCAA Football ’06 for the PlayStation 2 and Xbox systems, the virtual version of Rutgers’ quarterback had the same characteristics as he did, from his height, weight, and uniform number down to his “distinctive left hand wristband” (Editor’s note: the armband referenced is often worn by quarterbacks so that they can reference certain plays on the field, meaning it is not as “distinctive” as Mr. Hart made it out to be).
Electronic Arts’s lawyer Elizabeth McNamarra stated that the decision by judge Freda Wolfson “validates Electronic Arts’s rights to create and publish its expressive works.” Hart’s lawyer, Tim McIlwain, told GI.biz (registration required) that the decision was “a major disappointment,” and insisted that EA “engaged in the absolute taking of my client’s persona.”
Electronic Arts is currently under fire by similar lawsuits by other players whose likenesses have been used in a similar fashion, such as former Nebraska quarterback Sam Keller, National Football League Hall of Famer Jim Brown, and former UCLA basketball standout Ed O’Bannon.
Ryan Hart finished his career at Rutgers with a 10-11 record as a starter and threw for 5,289 yards with 35 touchdowns and 27 interceptions in his career. He led Rutgers to their second ever bowl appearance in 2005, a 45-40 loss to Arizona State in the Insight Bowl.
Analysis: This has to be seen as a precedent setter in the other lawsuits that EA is fighting regarding their use of collegiate athletes and could be the turning point that single-handedly saves the NCAA license. A ruling in Hart’s favour here could have set the ball rolling that forced EA to pay millions in past royalties to virtually every player whose likeness has appeared in an NCAA game, dating back to the Bill Walsh games in the 1990s. A ruling like that would’ve caused EA to abandon their NCAA Football franchise, as they would’ve been forced to randomize everything about a player’s appearance in the game. For example, in NCAA ’12, Stanford’s #12 is easily recognizable as Andrew Luck in both looks and skill set. If EA were forced to change the way they make the game by a negative ruling in this case, they would have to make Luck look completely different and change his ratings to the point where it would completely change the way people play as Stanford. In short, it’d be a game changer, and since downloadable roster updates are only used by the most hardcore players, it’d be a game breaker as well. The legality of said roster updates would be a different story since they’re uploaded onto EA’s servers, but I’m guessing they would fall under safe harbour laws.
I’m surprised this case was decided on first amendment grounds, as to me, it’s not so much a first amendment issue as it is a copyright issue. In short, players forfeit their rights to protect their likeness in regards to sports video games the moment they become NCAA athletes. One can argue about whether the NCAA should be paying student athletes until they’re blue in the face, but such arguments are irrelevant under the current standard. By that view, the one “taking” Mr. Hart’s persona was the NCAA itself; EA’s just another cog in that machine.
This is the correct ruling from a legal standpoint, it’s an advantageous ruling for EA, and it’s a good ruling for gamers, as it will make the games they purchase more realistic than they would’ve been otherwise.
Now, maybe EA can spend the time they spent on fighting this case for other purposes, such as cleaning up some of NCAA ’12‘s game-crushing bugs.