The Right of Publicity for College Athletes in Video Games

This is a guest post by Jeffrey Harris, Presidential Management Fellow at the Law Library.

Not a lot people know this about me, but before I started working at the Law Library of Congress, I used to be a football coach. Even though I was young for a coach at the time, the University of Buffalo took a chance on me and hired me as its offensive coordinator. My first few seasons there were rocky, but the important thing is we kept our spirits high. Within four seasons, we had gone from one of the worst teams in college football to a National Champion.

Wait…I probably should’ve mentioned this was in the video game NCAA Football 2012. A large amount of time during my junior year of college went into playing games from this series because of the tremendous amount of detail the creators put into it, from mimicking the mascots with pinpoint accuracy down to replicating the players’ physical features.

However, this level of accuracy has also led to trouble for video game designers like Electronic Arts, Inc. (EA), as well as the NCAA, and is a reason the series remains in hiatus.

The Issue

The issue relates to the use of player likenesses without remunerating the players. Athletes featured in video games normally receive compensation, such as the football players portrayed in the iterations of the Madden series. Due to NCAA bylaws, however, college athletes cannot accept money for actions such as endorsements, autographs, and public appearances without running the risk of losing their amateur status as well as their scholarship.

As games have become more realistic, players of both the past and present have begun to take notice as well as legal action. The Supreme Court as recently as last October declined to hear one of these cases, O’Bannon v. NCAA, after the Ninth Circuit Court of Appeals held for the NCAA. O’Bannon, a college basketball star for UCLA in the 90’s, made his case under an antitrust theory where the schools represented “buyers” and the athletes represented “sellers.” While Judge Douglas Ginsburg and Professor Geradin did a tremendous job teaching me antitrust law back in law school, I can talk much more competently about another theory athletes have argued under: the right of publicity.

Right of Publicity

The right of publicity is the ability of individuals to control the use of their personal features such as name and likeness by third parties. Based in state law and deriving from the right to privacy, lawmakers have established the right as a way to protect people from commercial exploitation. The right applies to everybody from ordinary citizens to A-List celebrities, though the majority of the most noteworthy cases concern celebrities suing to either protect their reputations or receive payment for use of their likeness.

Hart v. Electronic Artists (2013) is one of the two court cases in this area that has reached the court of appeals level under the theory of right of publicity. Ryan Hart, the plaintiff, was a former quarterback at Rutgers University. He sued EA over the use of his likeness in the NCAA Football game franchise as well as some actual images of him that were used in promoting the game. EA did not argue against the claim that it may have violated Hart’s right of publicity; however, it argued that the First Amendment protected its use of his likeness in the video game. This required the court to conduct a balancing test between Hart’s right to control his likeness versus EA’s right to freedom of expression.

The court laid out three possible tests that different right of publicity cases have used:

• Predominant Use Test: whether or not the “predominant use” of the work is to exploit “the commercial value of the individual’s identity” or if it “is to make an expressive comment on or about a celebrity.”
• Rogers Test: “looks to the relationship between the celebrity image and the work as a whole.” In other words, is the celebrity reference a pivotal part of the work or just something small or even a coincidence?
• Transformative Use Test (the test adopted by the court in this case): “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.”

The lower court had previously granted summary judgment in favor of EA. The court of appeals overturned the lower court’s grant of summary judgment, holding that EA had not shown their First Amendment freedom outweighed Hart’s right due to factors such as having the same biographical information of the players with little ability to change it, as well as having the closely resembling avatars playing the sport that has made their real life counterparts so well-known.

The NBA will hold its amateur draft in less than two weeks. This night will allow teams (and their diehard fans) to see what stars will help shape their franchise’s future. For some of these stars, it will allow them to not just become the face of their franchise, but also the league itself through endorsements, media appearances, and even video games. The issue of whether college athletes should also be paid has many nuances and arguments that stretch beyond student-athlete inclusion in video games. However, with multiple cases reaching the court of appeals level, coupled with fan demand for more realistic games as technology improves, this issue will likely find its way to the courts again with implications for hundreds of schools and thousands of athletes.