In two recent cases involving the video-game manufacturer Electronic Arts, Inc., the Third and Ninth Circuits have construed the right-of-publicity (misappropriation) tort in the context of college football video games to have ramifications that may dangerously impact protections afforded by the First Amendment for other realistic, but unauthorized, expressive works. The decisions—Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013), and In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 724 F.3d 1268 (9th Cir. 2013)—grant video games much more limited protection than other expressive works, and cast doubt on the protection that will be afforded to future works.
The Third and Ninth Circuits, over strong dissents, held that realistically depicting college football players in video games showing them playing football is not sufficiently "transformative" to avoid liability for using their likenesses and player biographical information. The dissenters argue that the case holdings put the ability for creators to produce other realistic, but unauthorized, expressive works based on historical events and people at risk. Both decisions are at least sufficient to give pause for most First Amendment proponents.
This article discusses the Third Circuit's decision and highlights questions it raises for future realistic, but unauthorized, expressive works. The second part in this series will discuss the Ninth Circuit's decision and why the Rogers test is more protective of First Amendment rights and, thus, a better test.