A New Jersey federal judge granted summary judgment for video game company Electronic Arts in a suit brought by a former Rutgers University quarterback who claimed that the company misappropriated his likeness as a virtual player in EA’s NCAA Football video game.

Ryan Hart argued that Electronic Arts violated his right of publicity by using his physical attributes like his height and weight, his speed and agility rating, jersey number, and choice of accessories (a helmet visor and left wristband) for a character in four versions of the video game. The video game manufacturer – facing several similar suits – argued that video games are protected expressive works under the First Amendment.

The court agreed, relying in part upon the recent U.S. Supreme Court decision in Brown v. Entertainment Merchants Association, which found that video games deserve the same First Amendment protection as other formats like books, plays, and movies. Applying the transformative test, U.S. District Court Judge Freda Wolfson wrote that there “are sufficient elements of EA’s own expression found in the game that justify the conclusion that its use of Hart’s image is transformative and, therefore, entitled to First Amendment protection.” Viewing the video game as a whole, the court found that NCAA Football includes several creative elements apart from Hart’s image, including virtual stadiums, athletes, coaches and fans, and game commentary.

The court also concluded that, even focusing on Hart’s image alone, the game is transformative. “It is true that the virtual player bears resemblance to Hart and was designed with Hart’s physical attributes, sports statistics, and biographical information in mind. However, as noted, the game permits users to alter Hart’s virtual player, control the player’s throw distance and accuracy, change the team of which the player is part by downloading varying team names and rosters, or engage in ‘Dynasty’ mode, in which the user incorporates players from historical teams into the gameplay,” the court wrote. These additions, in the court’s view, make the game transformative.

In granting summary judgment, the court stated that the “malleability of the player’s image in NCAA Football suggests . . . that the image serves as an art-imitating-life starting point for the game playing experience. On balance, on the facts of this case, [EA’s] First Amendment right to free expression outweighs [Hart’s] right of publicity.”

To read the decision in Hart v. Electronic Arts, Inc., click here.

Why it matters: The court distinguished the decision in a similar California suit where the court denied EA’s motion to dismiss, ruling that because the Hart case had reached the summary judgment stage, it had a more robust factual record than the California court. In addition, the judge found it significant that the California court failed to address that the virtual image may be altered into various formulations: “I find this aspect of the game significant because it suggests that the goal of the game is not for the user to ‘be’ the player.”