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Wednesday, May 22, 2013
Hart v. Electronic Arts: First Amendment Does Not Trump the Right of Publicity

In adopting and applying the transformative use test for balancing the First Amendment against the right of publicity, yesterday the Third Circuit ruled in Hart v. Electronic Arts that the First Amendment does NOT trump college players' right of publicity in the context of video game use of their likenesses.  The court's 62-page opinion is here and it is a fascinating read for those of you who, like me, have an interest in right of publicity law.

Courts that have rejected professional athletes' right of publicity claims in various contexts (such as fantasy league use and parody trading card use) have sometimes highlighted the fact that "they are already handsomely compensated."  While in my view this has no relevance in evaluating a professional athlete's right of publicity claim, the Third Circuit in a footnote (pg. 23 of the opinion) points out that it is obviously inapplicable to right of publicity cases involving amateur athletes:
We reject as inapplicable in this case the suggestion that those who play organized sports are not significantly damaged by appropriation of their likeness because "players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements." (citations omitted)  If anything, the policy considerations in this case weigh in favor of [the athletes].  As we have already noted, intercollegiate athletes are forbidden from capitalizing on their fame while in school.

The right of publicity claim in the O'Bannon/Keller consolidated case is pending appeal on the opposite side of the country in the Ninth Circuit.  The district court in that case has already ruled that the First Amendment does not trump the players' right of publicity in the context of video game use.  It would surprise me if the Ninth Circuit does not ultimately uphold the district court's ruling.  But even if the Ninth Circuit were to reverse the district court, it would result in a split of circuits on this question.   The bottom line, therefore, is that this is a highly significant and ground-breaking decision by the Third Circuit in favor of college players. 



Doesn’t the Third Circuit’s decision create a likely split with the Eighth Circuit on an important point related to the use of names versus likenesses?

Back in 2006, the district court in C.B.C. thought the fantasy baseball provider didn’t use the players’ identities because the game didn’t use the players’ likenesses. The game only used their names and statistics. The district court made clear that using the players’ likenesses would have made a difference for determining whether the right of publicity was infringed. The district court further suggested that using names and statistics, plus character, personality, and/or reputation could also have made a difference, see 443 F. Supp. 2d 1077, 1089, but either way, there seemed to be some important difference between just using names and using likenesses. Likenesses were the bigger deal.

The Eighth Circuit, however, recognized that the fantasy baseball game did in fact use the players’ identities, despite not using their likenesses:

“[T]he district court did not understand that when a name alone is sufficient to establish identity, the defendant’s use of that name satisfies the plaintiff’s burden to show that a name was used as a symbol of identity.” 505 F.3d 818, 822.

So the key question for the Eighth Circuit, before turning to the First Amendment defense, was simply whether the game used the players’ identities. Under C.B.C., there is no special distinction between using names and using likenesses. It didn’t matter whether the game used just names or just likenesses or both, as long as the use was a recognizable symbol of the players’ identities.

As to whether the First Amendment analysis should change when likenesses are added to the mix, the Eighth Circuit framed at least part of the answer this way:

“We also find no merit in the argument that CBC’s use of players’ names and information in its fantasy baseball games is not speech at all. We have held that ‘the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games’ is speech entitled to first amendment protection. See Interactive Digital Software Ass’n v. St. Louis County, Mo., 329 F.3d 954, 957 (8th Cir. 2003). Similarly, here CBC uses the ‘names, nicknames, likenesses, signatures, pictures, playing records, and/or biographical data of each player’ in an interactive form in connection with its fantasy baseball products. This use is no less expressive than the use that was at issue in Interactive Digital.” 505 F.3d 818, 823.

Note what’s on the “and/or” list of things C.B.C. actually did use or might have used: likenesses and pictures. While this particular language might be read only to answer the narrow question of whether games are speech, it fits with the general approach of the Eighth Circuit’s opinion, which was not to make a special distinction between names and likenesses.

The Third Circuit, by contrast, focused on Electronic Arts use of the players’ likenesses. It said the use of likenesses distinguishes Hart from C.B.C. The Third Circuit said:

“This joint focus on both likeness and identifying information avoids a conflict with C.B.C. Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), which held that use of major league baseball players’ records in a fantasy baseball game was protected by the First Amendment even against right of publicity claims because such information was publicly available. Id. at 823-24. The presence of a digital avatar that recreates Appellant in a digital medium differentiates this matter from C.B.C.”

I don’t think it does distinguish Hart from C.B.C. Although it may take another Eighth Circuit decision to confirm it, I don’t think the Third Circuit avoided a conflict.

(This comment started out much shorter!)

Anonymous William Ford -- 5/22/2013 2:15 PM  


I agree with you that the Third Circuit's name/likeness distinction did not avoid a conflict with the Eighth Circuit. I don't see any relevant distinction between names and likenesses in the context of a First Amendment/Right of Publicity balancing. The Eighth Circuit in C.B.C. adopted a new, unusual, and questionable "public domain" test for balancing the First Amendment to deny players a right of publicity in fantasy league use. A public domain test does not focus on the USE of the names and would trump the players' right of publicity in virtually any context because the players' names are in the public domain. Any other test (transformative use, predominant use, etc.) clearly would have resulted in a different outcome in C.B.C., which is probably why the Eighth Circuit avoided applying any of the commonly used tests.


Blogger Rick Karcher -- 5/22/2013 10:49 PM  

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