As the Wall Street Journal put it in a May 21 story, “It took almost no imagination to pretend that the nameless Rutgers University quarterback in the popular EA Sports NCAA Football videogame was Ryan Hart.” The Rutgers quarterback in the video game exhibited virtually every one of his traits with the exception of his name, including height, weight, jersey number and skin and color. Additionally, the Journal noted that the digital quarterback also had the same helmet visor and left wrist band Hart wore in real life. Hart played for Rutgers from 2002 to 2005, and his case was dismissed at the federal district court level in 2011 after a judge ruled the depictions of college players was protected by EA’s right to free expression under the First Amendment.
However, a 2-1 decision by the US Court of Appeals for the Third Circuit in Philadelphia last month reversed that finding, as the appeals court ruled that the company had failed to demonstrate it had transformed Hart’s identity enough to earn First Amendment protection. This is far from being the only pending lawsuit against the NCAA that is being watched closely by lawyers in multiple industries, as a similar complaint filed by former Nebraska and Arizona State quarterback Samuel Keller is on appeal at the federal level in another district. Keller’s lawsuit was combined with high-profile suit filed by former UCLA basketball player Ed O’Bannon, a complaint that is seeking class action status and in which a ruling is expected later this month. If O’Bannon’s lawsuit becomes a class action, the case could then involve thousands of current and former college players in a case in which the potential damages could profoundly alter the NCAA’s rules for eligibility and compensation of athletes, let alone video games based on college sports.
This case can be a very valuable lesson for those who are in the process of creating video games, as First Amendment rights do not fully protect companies from exploiting real life individuals or dismissing allegations of copyright infringement. If you want to help protect your company from costly intellectual property litigation, contact our firm at (323) 653-3900 or fill out the form on this page to let our Los Angeles copyright infringement attorney review your case.
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