Hart v. Electronic Arts, Inc., No. 11-3750 (3d Cir. May 21,
2013)
Hart, a former Rutgers football player who saw significant
success on the field, appealed EA’s district court win against his right of
publicity claim based on EA’s use of his likeness and biographical information
(size, weight, jersey number, typical attire of visor and armband) in its NCAA Football videogames. The court of
appeals reversed.
Unsurprisingly, the court began with reference to the NCAA’s
amateurism rules, which precluded Hart
from making any money from his status, but didn’t stop the NCAA from monetizing
his popularity.
NCAA Football
comes out every year, and allows users “to experience the excitement and
challenge of college football” by interacting with “over 100 virtual teams and
thousands of virtual players.” Users
typically play by choosing two teams to compete against each other. The game “assigns a stadium for the match-up
and populates it with players, coaches, referees, mascots, cheerleaders and
fans.” There are also multi-game play
modes. Dynasty Mode allows users to
control a college program for up to thirty seasons, allowing players to recruit
high school players from a randomly generated pool. Race for the Heisman/Campus
Legend mode allows users to control a single user-made virtual player from high
school through college, making choices about practices, academics and social activities. EA licenses rights to team-related content
from the NCAA, but does not license likeness and identity rights for collegiate
players—unlike some of its other franchises.
The game’s success depends on its focus on realism and detail, “from realistic
sounds, to game mechanics, to team mascots. This focus on realism also ensures
that the ‘over 100 virtual teams’ in the game are populated by digital avatars
that resemble their real-life counterparts and share their vital and biographical
information.” This included a Rutgers avatar that resembled Hart. While users can change avatars’ appearances
and vital statistics, certain details were immutable: the player’s home state,
home town, team, and class year.
Hart sued based on the use of his likeness/biographical and
career statistics in the game, and also over the use of an actual photo of him
in a photo montage visible only when players select Rutgers as their team. Preview: This last was held transformative
and fair because it’s a montage, while the rest is not transformative because
it’s a realistic videogame. If those
becauses don’t make any sense to you, welcome to the club!
As you know, Bob,
videogames are fully protected by the First Amendment.
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729
(2011).
However, such protection can be
trumped by other protected rights.
EA
conceded for purposes of the appeal that it misappropriated his identity for
commercial exploitation; this required balancing the interests underlying the
right to free expression with the interests in protecting the right of
publicity.
Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) (also a
cite to
Eldred and to defamation law).
The court then engaged in a review of existing case
law. The basic theory of the right of
publicity is that people have the right to enjoy the fruits of their own
industry; it’s unfair to allow others to commercialize, exploit, or capitalize
on another’s name or reputation.
People’s names and likenesses belong to them as property because they
are things of value. New Jersey follows the Restatement (Second) of Torts
approach that “[o]ne who appropriates to his own use or benefit the name or likeness
of another is subject to liability to the other for invasion of privacy,” and
that this is a property right. The Third
Restatement adopted a freestanding right of publicity claim, but New Jersey has
yet to adopt it.
In New Jersey, name, likeness, and endorsement therefore
carry value, and unauthorized use harms the person by “diluting the value of
the name and depriving that individual of compensation.”
The goal of the right of publicity is
therefore to protect an individual’s property interest in their identity gained
through labor and effort, and to encourage further investment in this property
interest.
See Zacchini (“[T]he State’s interest in permitting a right of publicity.
. . . is closely analogous to the goals of patent and copyright law, focusing
on the right of the individual to reap the reward of his endeavors . . . .”).
Relatedly, the court rejected the idea that
no right of publicity was necessary because players are financially rewarded
through endorsement, sponsorship, and the like—this doesn’t apply to college
athletes, and the
NCAA
most recently estimated that “[l]ess than [two] in 100, or 1.6 percent, of
NCAA senior football players will get drafted by a National Football League
(NFL) team.” Ryan Hart was in the nearly 99%.
(So does that mean that in our future case-by-case
balancing we
do get to count those
other economic opportunities against granting control to celebrities who are
getting paid?)
Zacchini called
for balancing of First Amendment interests, but didn’t set forth a systematic
analytic framework for doing so. Lower
courts have tried several approaches.
The court identified three as of interest: the execrable Doe v. TCI “predominant use” test, the
trademark-based Rogers test, and the
copyright-based transformative use
test. It picked the transformative use
test as the most appropriate.
As for Doe v. TCI,
asking whether the predominant use of a celebrity’s identity is commercial is “subjective
at best, arbitrary at worst, and in either case calls upon judges to act as
both impartial jurists and discerning art critics. These two roles cannot
co-exist.” The court declined to get
into whether using Hart’s identity added anything to the “First Amendment
expressiveness” of the game:
Such reasoning, however, leads down
a dangerous and rightly-shunned road: adopting Appellant’s suggested analysis
would be tantamount to admitting that it is proper for courts to analyze select
elements of a work to determine how much they contribute to the entire work’s
expressiveness. Moreover, as a necessary (and insidious) consequence, the
Appellant’s approach would suppose that there exists a broad range of seemingly
expressive speech that has no First Amendment value.”
(This criticism is also true of transformative use,
especially as applied here, but hey!)
The court then rejected Rogers
because it would “potentially immunize a broad swath of tortious activity.” (You know, like New York Times v. Sullivan.)
The Restatement (Third) of Unfair Competition restricts the right of
publicity to “use for purposes of trade,” which does not “ordinarily include
the use of a person’s identity in news reporting, commentary, entertainment,
works of fiction or nonfiction, or in advertising that is incidental to such
uses” unless a name or likeness is used solely to attract attention to an
unrelated work. The Restatement
specifically mentions uses in articles in fan magazines, feature stories on
entertainment programs, unauthorized biographies, novels, plays, and motion
pictures.
The court didn’t find the cases (allegedly) adopting Rogers persuasive. Parks
v. LaFace, for example, was in tension with the transformative use test
applied in ETW v. Jireh, decided by
another Sixth Circuit panel a month later.
And the Third Circuit had already, in dicta, expressed doubt that Rogers could apply beyond a title. Facenda v. N.F.L. Films, Inc., 542 F.3d 1007
(3d Cir. 2008). Though Rogers may be useful in “trademark-like”
right of publicity cases, whatever that means, it wasn’t appropriate here
(since it would mean that EA won). Rogers is a “blunt instrument” that
doesn’t carefully calibrate the balancing of “two fundamental protections: the
right of free expression and the right to control, manage, and profit from one’s
own identity.” (Although the last time I
checked, only one of those was in the Bill of Rights. Also, categorical balancing is often used in
First Amendment cases, to avoid chilling effects—case by case determination of
“transformativeness” has significant costs that have to be balanced while we’re
balancing.)
The problem the court had with Rogers was demonstrated by EA’s argument, which was that Hart’s
likeness wasn’t wholly unrelated to NCAA football, and the game wasn’t an ad
for an unrelated product, therefore EA won.
EA argued that Hart “should be unable to assert a claim for
appropriating his likeness as a football player precisely because his likeness was
used for a game about football. Adopting this line of reasoning threatens to
turn the right of publicity on its head.”
(That presupposes exactly the question to be
answered, which is how far the right of publicity may constitutionally
extend. Also, imagine this statement
made about a conventional print biography.
Or about a news photograph accompanying a story about the Rutgers
football team. Or Joyce Carol Oates’
next roman a clef about a college football player who sues a video game
company. Etc.) You see, Hart’s career
means that the target audience for his “merchandise and performances” would be
sports fans, so products “appropriating and exploiting his identity” would do
best with them. But under Rogers, all products (and here we mean
“expressive works protected by the First Amendment”) targeting the sports fan
market would, as a matter of course, relate to Hart and fall outside his right
of publicity. “It cannot be that the
very activity by which Appellant achieved his renown now prevents him from protecting
his hard-won celebrity.” (No, but it can
be that engaging in speech about the
very activity by which Hart achieved his renown prevents him from maintaining a
successful claim against the speakers; what we have here is a failure to define
the scope of the right, or explain why it should trump the interest in engaging
in nondefamatory noncommercial speech.)
For these reasons, Rogers
was inapplicable, though the Rogers
court was right to note that the right of publicity doesn’t have consumer
confusion as an element and was therefore “potentially broader” than
trademark. Of course, this is a reason
why the right of publicity does less well in any balancing test than
trademark—deceptive speech is easier to regulate than nondeceptive speech, at
least when it does harm (Alvarez)—not
a reason why a right of publicity claim trumps freedom of speech when an
equivalent trademark claim, supposedly protecting both the public and the trademark owner, wouldn’t be sufficiently
weighty to do so. But that’s not what
the Hart court says, since we are in
topsy-turvy land: “the right of publicity is broader and, by extension,
protects a greater swath of property interests. Thus, it would be unwise for us
to adopt a test that hews so closely to traditional trademark principles.” (Traditional pre-Sullivan defamation law protected a
“greater swath” of personality interests than current defamation law; that made
it unconstitutional. And one could say,
as Justice Rehnquist once did, that the US flag is the “property” of the
American people, and yet flagburning statutes are still unconstitutional. Calling an interest “property” doesn’t make
it First Amendment-immune. Even Eldred
and Golan don’t go that far—not that
any legislature adopting a right of publicity has engaged in even the token
factfinding backing up the CTEA.)
So, the court turned to a “broader, more nuanced test,”
transformative use. Copyright was a
better analogy than trademark, because the right of publicity is an economic
right against misappropriation. It
applies to noncommercial speech too, offering “protection to a form of intellectual
property that society deems to have social utility.” Therefore, taking transformativeness from
copyright’s fair use test was appropriate, especially since transformative uses
are less likely to interfere with the economic interests implicated by the
right of publicity. Of course,
transformativeness may include factual reporting and fictionalized portrayal
along with parody and satire. The
inquiry, as Comedy III v. Saderup
said, was “in a sense more quantitative than qualitative, asking whether the
literal and imitative or the creative elements predominate in the work.” (Wasn’t that the test the court just rightly
rejected from Doe v. TCI?)
If the marketability of the challenged work doesn’t derive
primarily from the fame of the celebrity depicted, there’s generally no
violation of the right of publicity.
However, even if the work’s marketability does derive from the celebrity’s fame, it can still be transformative. The question is whether the celebrity
likeness is one of the “raw materials” from which an original work is
synthesized, or whether the depiction is the “very sum and substance” of the
work. (But of course biographies and news reporting are fine! The reason why is … left as an exercise for
the reader.) So the question is whether
the celebrity’s likeness “has become primarily the defendant’s own expression
rather than the celebrity’s likeness,” and “expression” has to be “expression
of something other than the likeness of the celebrity.”
(Not that word portraits will never be in jeopardy. The thing about medium discrimination is that
it’s invisible to the people engaging in it.
The work of portraying a celebrity in a textual biography is so self-evidently
transformative creative “work” of the writer's "own" that the court feels no need to explain why it’s
qualitatively different from the work of a portraitist. The work required to create a realistic video
game, which involves extensive programming and creative design, by contrast
appears to the court mere reproductive labor.
I would still think this was dumb, but I wouldn’t be as aggravated if courts would outright say
“the right of publicity, though in theory having something to do with ‘name,’
is only a right in images, at least as applied outside the context of false
endorsement.”)
Winter v. DC Comics,
69 P.3d 473 (Cal. 2003) expanded on the California rule: “[a]n artist depicting
a celebrity must contribute something more than a ‘merely trivial’ variation,
[but must create] something recognizably ‘his own’ in order to qualify for
legal protection.”
ETW v. Jireh decided that a painting was transformative because it
was a collage of Tiger Woods with other golf greats.
The
Hart
court, inexplicably, calls the painting in question “a photograph of Tiger
Woods set among a collage of other, golf-related photographs.”
ETW,
the court said, was “somewhere in the middle …, given that it focuses on the
use of photographs (literal depictions of celebrities), but adds a transformative
aspect to the work, thereby altering the meaning behind the use of the
celebrity’s likeness.”
Winter was at the far end of the
spectrum—depicting Johnny and Edgar Winter as half-worm comic book villains was
obviously transformative—while
Comedy III
was clearly nontransformative: mere
literal depictions of celebrities in a different medium.
This leads to Kirby v.
Sega of America, Inc., 50 Cal. Rptr. 3d 607 (Cal. Ct. App. 2006), finding
transformative use of a musician’s image to create a video game character who
was “a reporter in the far flung future.”
Sega seemed to have copied Kirby’s signature phrases, hair style, and
clothing choice, but differences in appearances and movement also existed. This additional new expression was enough to
be transformative, even without a particular meaning or message.
In No Doubt v.
Activision Publishing, Inc., 122 Cal. Rptr. 3d 397 (Cal. Ct. App. 2011), by
contrast, the court found a violation of the right of publicity when the video
game at issue used “immutable” images of the “real” musicians and didn’t
transform their context, instead having them perform rock songs as they did in
life. Even though the avatars could be
manipulated to perform at fanciful venues or to sing songs the real band
wouldn’t ever sing, and even though the game had many other creative elements,
they were still “exact depictions” of the musicians doing their thing. The use of highly realistic digital
depictions “was motivated by a desire to capitalize on the band’s fan-base,” so
there was a violation of the right of publicity. (But fan magazines and
entertainment programs are fine! Because
… they’re not video games?)
The Hart court
concluded that transformative use struck the best balance between the interests
at issue “because it provides courts with a flexible — yet uniformly applicable
— analytical framework.” Unlike Rogers, transformativeness allows courts
“to account for the fact that misappropriation can occur in any market segment,
including those related to the celebrity.” (And to ignore the difference between
commercial and noncommercial speech, and deceptive and nondeceptive
speech. No big deal.) But, unlike Doe v. TCI, transformativeness is “more circumscribed,” focusing on
specific aspects of a work “that speak to whether it was merely created to
exploit a celebrity’s likeness.”
Transformativeness “recognizes that if First Amendment protections are
to mean anything in right of publicity claims, courts must begin by considering
the extent to which a work is the creator’s own expression.” The marketing power of the celebrity identity
is a secondary question, since the balancing suggested by Zacchini can’t begin and end with commercial purpose or value. Transformative use “effectively restricts
right of publicity claims to a very narrow universe of expressive works.” (Categorical balancing, with a focus on
avoiding chilling effects on protected speech, might ask whether this game, no
pun intended, is worth the candle.)
And the test was consistent with the outcomes of other
cases, including
Estate of Presley v. Russen,
513 F. Supp. 1339 (D.N.J. 1981), which held that an Elvis impersonator’s act
was subject to right of publicity claims because “entertainment that is merely
a copy or imitation, even if skillfully and accurately carried out, does not
really have its own creative component and does not have a significant value as
pure entertainment.”
(Which totally
explains why people go to see impersonators instead of watching video of the
original!
Oh, wait, it doesn’t.
Also,
Tina Fey would like a word.)
As in
Zacchini, the Elvis impersonator “appropriated the ‘very activity
[live stage show] by which [Presley initially] acquired his reputation.”
Where a work contains “‘merely a copy or
imitation’ of the celebrity’s identity … there can be no First Amendment impediment
to a right of publicity claim.”
(Except
for biographies and news reports/photography.)
Transformativeness was also, in the court’s view, consistent
with the Restatement test, because the examples listed as protected in the
comments to the Restatement “all exemplify the sort of transformative uses that
would generally pass the analysis set forth in Comedy III.” Thus, “already-existing
First Amendment protections in right of publicity cases apply to video games
with the same force as to ‘biographies, documentaries, docudramas, and other expressive
works depicting real-life figures.’” Except that they win and EA loses; other than
that, totally the same.
Here, Hart’s protected “identity” included not only his
likeness but also his biographical information; it was the combination that
identified the digital avatar at issue as an in-game recreation of Hart:
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. The presence of a digital avatar that recreates Appellant
in a digital medium differentiates this matter from C.B.C.
Okay, I lied: this is still aggravating. Why does the presence of his image make a
difference to the First Amendment issues?
Why do celebrities have more
rights in pictures of them than in facts about them? A case could, I imagine, be made having to do
with “if value then right” and the greater value of the image in present-day
society, but it’s being assumed rather than articulated.
The court’s focus on visual representation causes it some
uncertainty about the scope of its holding: “It remains an open question ... whether right of publicity claims can extend into the bygone days of
8-bit graphics and pixilated representations.”
Here, though, the digital avatar closely resembled the “genuine article”
in hair color, hair style, skin tone, accessories, vital information, and
biographical details. “And while the inexorable
march of technological progress may make some of the graphics in earlier
editions of NCAA Football look dated or overly-computerized, we do not believe
that video game graphics must reach (let alone cross) the uncanny valley to
support a right of publicity claim.”
Digitization was not itself transformative. Recreating a likeness in a medium other than
photographs or video can’t in itself satisfy the test, or the test wouldn’t make
enough uses liable. (A couple of things
going on here—on top of the initial disregard of the work involved in creating
photos and video as creative, contra copyright, there’s a different erasure of
creative labor in video game design/programming, portraiture, and other
non-reprographic methods of depicting people. Except words, of course. Missing here and throughout is any explanation of why biographies etc. are transformative; this is what makes the opinion so clearly non-medium neutral.)
The next question was whether the context was
transformative. Here, digital Hart did
what actual Hart did at Rutgers: he played football. (*cough*Unauthorized biographies*cough*.) Though users could alter the
avatar’s appearance, and though EA created a game in which users could make
those kinds of decisions, that wasn’t enough.
All games are interactive.
True, video games have First Amendment protection because
they’re interactive. (Here I thought it
was because they were expressive.) But
the balancing test isn’t about whether a work loses First Amendment protection
in the abstract. Rather, it’s about
whether “the interests protected by the right of publicity are sufficient to surmount
the already-existing First Amendment protections. As Zacchini demonstrated, the right of publicity can triumph even when
an essential element for First Amendment protection is present.” And “[i]f the mere presence of [the ability
to alter an avatar] were enough, video game companies could commit the most
blatant acts of misappropriation only to absolve themselves by including a
feature that allows users to modify the digital likenesses.” In a footnote, the court cautioned that
interactivity wasn’t necessary for transformativeness, even for videogames. Placing avatars of the Dalai Lama and the
Pope in a violent “shoot-em-up” game with a mechanism for manipulating their
characteristics wouldn’t automatically satisfy the test, though the court
didn’t “discount the possibility” that such a juxtaposition of spiritual
leaders and hyperviolence could be transformative “on other grounds.”
Here, the interactivity was insufficient to transform Hart’s
likeness into EA’s own expression. NCAA
Football sought to create a realistic depiction of college football, including
realistic representations of players, seeking to capitalize on teams’ and
players’ fan bases. This heightened realism made the games more enjoyable and
thus more valuable. Realistic depictions
were the “sum and substance” of the digital players. Since Hart’s unaltered likeness was “central
to the core of the game experience,” the ability to change the digital avatars
wasn’t important. The ability to make
minor alterations in the avatar, such as changes in his hair style, face,
accessories, basic biographical information, or playing statistics, was
insufficient, because an artist depicting a celebrity has to contribute more
than a trivial variation.
“[T]he ability to modify the avatar counts for little where the
appeal of the game lies in users’ ability to play ‘as, or alongside’ their
preferred players or team.” Thus, even
avatars with “superficial modifications” were suitable proxies or market
subsitutes for the original. And once a
user made major changes to the avatar, it wasn’t a “use” of his identity and
was irrelevant to the question of how his likeness was used in the game.
Also, it didn’t matter that Hart was a tiny part of the
overall game. Consideration of the other
creative elements was improper, because transformativeness is about “how the
celebrity’s identity is used in or is altered by other aspects of a work,”
without consideration of “[w]holly unrelated elements.” (Forrest
Gump is looking pretty problematic!)
Consideration of the broader context of a work should be aimed at “whether
this context acted upon the celebrity identity in a way that transformed it or
imbued it with some added creativity beyond providing a ‘merely trivial
variation.’” So, you’d better have a
good creative reason for your celebrity reference in your book, movie, etc. Or just your video game.
An alternative holding, considering the creativity of the
rest of the work, would allow “[a]cts of blatant misappropriation” as long as “the
larger work, on balance, contained highly creative elements in great abundance.
This concern is particularly acute in the case of media that lend themselves to
easy partition such as video games.”
(Calling Gawker and the Huffington Post—those short celebrity stories
and pictures, so easily partitionable from the rest of the site, are now going
to get you in trouble! Or would, if this
were a medium-neutral decision.)
Just to make clear that video games are special, the court
held that the photo of Hart that appeared in the 2009 edition of NCAA Football
was not actionable. It was a fleeting
component of a montage, and was transformative under ETW: putting the photo in the context of a Rutgers montage “imbue[d]
the image with additional meaning
beyond simply being a representation of the player.” (Emphasis added—note the
slippage between the celebrity and a particular image of the celebrity, which
contributes to the medium discrimination at work here. The photo puts Hart in the context of the
Rutgers team, and that’s transformative.
But the avatar, which plays on the digital Rutgers team, is not.) The use of the photo was protected by the
First Amendment.
Judge Ambro dissented.
He agreed that EA took Hart’s identity and used it for commercial
success, and that realism was key to the franchise’s profitability. And he agreed that student athletes are exploited,
and that this seemed unfair. Further, he
agreed that transformativeness was the proper test. However, he interpreted and applied it
differently. (Not for nothing, giving
further credence to the objection that transformativeness too requires judges
to be art critics.)
Transformativeness balanced “an individual’s right to
benefit financially when others use his identifiable persona for their own
commercial benefit [with] the First Amendment interest in insulating from
liability a creator’s decision to interweave real-life figures into its expressive
work.” But the inquiry couldn’t be
limited to Hart’s identity alone, and EA shouldn’t be penalized for its
commercial success or its realism, given “First Amendment protections
traditionally afforded to true-to-life depictions of real figures and works
produced for profit.”
First, the work should be evaluated in its entirety to
figure out whether a work is “literal” or a celebrity likeness is simply one of
the “raw materials” from which an original work is synthesized, as stated in Comedy III and reemphasized in Winter, which noted that the Autumn
brothers were placed in a larger storyline with plenty of creativity of its
own. (In a footnote, the dissent pointed
out that the use here wasn’t harming Hart’s commercial value—if anything,
ticket sales for college football games and the value of Hart’s endorsement
would have been augmented by the popularity of EA’s games. This gets to the core of
“misappropriation”—what is it we think counts as such? To say that a person is harmed by not getting
payment for a “use” presupposes the proper scope of the right.)
The majority erred in disregarding the non-Hart creative
elements of the video game, conflicting with other courts’ approaches, such as
that taken by ETW. “My colleagues do not—and, in my view,
cannot—explain how the photographic images of Woods were transformed if they
limit their analysis to ‘how the celebrity’s identity is used.’” The use here,
“creating digital avatars of football teams and placing them in an interactive
medium designed for user interaction and manipulation” was “significantly more
‘transformative’ than the use in ETW,
which simply combined several photographs into a photomontage.” (Who was
reading the actual cases? Of course I
don’t think it matters legally that Rick Rush is a painter and not a collage
artist, but this is embarrassing.) To
Judge Ambro, a narrow focus on an individual’s likeness, rather than on how it
was incorporated into and transformed by the work as a whole, was flawed. The whole was the better baseline.
Judge Ambro reminded us that the First Amendment protects “biographies,
documentaries, docudramas, and other expressive works depicting real-life
figures, whether the accounts are factual or fictional.” And it protects them when they’re sold for
profit. Thus, using a celebrity name or
likeness to increase an expressive work’s value and marketability doesn’t
diminish its First Amendment protection.
The majority nodded in the direction of medium neutrality,
but wasn’t medium neutral in its application of the test. “EA’s use of real-life likenesses as ‘characters’
in its NCAA Football video game should be as protected as portrayals (fictional
or nonfictional) of individuals in movies and books.” Not all digital portrayals should be entitled
to First Amendment protection, but they should be when a likeness, as part of a
creative composition, “has been transformed into something more or different
than what it was before.” The majority further
erred in focusing on the marketability of the game; the “effect on the market”
factor of copyright fair use is not part of the right of publicity test as
promulgated by Comedy III. And even if it were appropriately considered,
there was no argument that EA’s use decreased the commercial value of Hart’s
identity or persona. The majority
wrongly equated the use of realism to increase profits with
misappropriation. “This approach is at
odds with the First Amendment protection afforded to expressive works incorporating
real-life figures. That protection does not depend on whether the characters
are depicted realistically or whether their inclusion increases profits.”
Judge Ambro therefore concluded that EA’s use of realistic
avatars was entitled to First Amendment protection. Hart’s mere likeness had been transformed
into an avatar that, “along with the rest of a digitally created college
football team, users can direct and manipulate in fictional football games.” The many original graphics, videos, sound
effects, and game scenarios allowed users to direct the play of a college
football team with many different players.
Users weren’t reenacting real games, but directing the avatars in
invented games and seasons. Campus
Legend/Dynasty Mode also allowed users to control players and teams across
multiple seasons, allowing them to generate their own narratives. These were “imaginative
transformations of the games played by real players.” The permutations allowed for each player
image added to this transformative interactivity. These elements were not “[w]holly unrelated”
to the use of Hart’s likeness, as the majority contended. Users who selected the 2005 Rutgers team and
didn’t change the avatar’s characteristics would experience the numerous
creative elements of the game as part of every fictional play. Thus, his likeness was one of the raw
materials from which a new work was synthesized, rather than the sum and
substance of the work in question.
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