PHILADELPHIA--(BUSINESS WIRE)--Former Rutgers University starting quarterback Ryan Hart is appealing his case against video game giant, Electronic Sports, Inc. urging the court to uphold his right of publicity from EA’s unfair commercial exploitation of his likeness in their NCAA Football video games and reverse a U.S. District Court’s ruling.
Hart alleges that EA exploited his likeness and the likenesses of many similarly situated NCAA football players by using hyper-realistic virtual avatars of those athletes in its highly popular “NCAA Football” games without his consent or compensation.
Timothy J. McIlwain, Esq. of the McIlwain & Mullen Law Firm filed the Appellant Brief on behalf of Hart Friday, February 10, 2012 in the United States Court of Appeals for the Third Circuit in the case of Ryan Hart v. Electronic Arts, Inc (Case No. 11-3750). Other prominent organizations such as the Screen Actors Guild (SAG) and all the major professional sports players associations (NFL, NHL, NBA and MLBPA) are expected to submit amicus (i.e. Friend of the Court) briefs in support of Hart’s case on Friday February 17, 2012. “I am very encouraged to have my legal position supported by these unions that are just trying to protect what people have worked a life to build...their image,” said McIlwain.
“This is arguably the most important case in America today because it involves a citizen’s right to their persona and their image. There is nothing more sacred then your own identity. Whether you're an artist, an athlete or a celebrity, a corporation's right as an ‘individual’ should not trump the rights of the real individual...there is just no way the framers of the US Constitution intended that” said McIlwain. “It is great to see that the NFL, NHL, NBA and MLBPA have the vision that if Ryan Hart and I lose this case, Tom Brady and Kobe Bryant are next because EA will have precedent to pay them nothing in the future,” McIlwain continued to say.
The appeal alleges that EA misappropriated and incorporated Hart’s likeness and identity in their NCAA Football series by creating a virtual Rutgers quarterback that deliberately and explicitly replicated Hart’s actual skills, appearance, physical features, sports statistics and biographical information in order to appeal to potential consumers. EA even went as far as to include a photograph of Hart throwing a pass during a Rutgers bowl game in “NCAA Football 2009.”
It also vigorously fights the decision of a U.S. District Court for the District of New Jersey which granted summary judgment to EA on September 9, 2011 on the ground that the First Amendment gives game manufacturers free rein to exploit the likenesses of athletes, celebrities and other public figures for the purely commercial purpose.
Other jurisdictions have, however, recognized right of publicity violations in similar circumstances. In No Doubt, the California Court of Appeal concluded that a video game publisher violated a popular rock band’s right of publicity by including realistic (yet user manipulatable) digital avatars depicting the band’s members in its “Band Hero” video game. And in Hilton v. Hallmark Cards, the Ninth Circuit determined that a humorous greeting card lampooning Paris Hilton violated Hilton’s right of publicity under California Law.
“EA has profited greatly by unfairly exploiting Hart and other NCAA players without their consent. A corporation cannot claim to be expressing itself under the First Amendment when it is blatantly violating players’ right of publicity by stealing their identity for profit without their permission or compensation, added McIlwain.
“The court should reject that ruling and give Hart his day in court as EA’s First Amendment interests do not outweigh Hart’s right of publicity. EA pays professional athletes significant licensing fees for its similar use of their likeness in ‘Madden NFL’ and the golf themed game ‘Palmer’. It’s time EA compensate the NCAA players for their identities which have substantial commercial value.”
Ryan Hart is a former starting quarterback for Rutgers University’s Division I college football team. He went to high school in Florida, and then played football for Rutgers during the 2002-05 seasons.