It is common practice for computer games to feature likenesses of sports’ teams (e.g. PS3 ALL BLACKS Rugby Challenge) or sports’ stars (e.g. Michael Jordan in NBA 2K11 for PS3).

But what happens when the creators of a game use an athlete’s likeness without permission?

Ryan Hart, a former Rutgers College quarterback struck such a dilemma when Electronic Arts Inc. (a global interactive entertainment software company) used Mr. Hart’s likeness in several versions of its NCAA Football sports game.

In the United States the right of publicity, (or personality rights), allows an individual to control the commercial use of his/her name, image or likeness and demand contractual compensation. It also grants them the right to privacy, so no one can represent them publicly without permission.

Mr Hart was unhappy that EA did not seek his permission (and recompense him appropriately) for using his likeness in the game. He sued EA seeking damages and eventually won as the Court found Mr Hart had control of his image and EA had not “sufficiently transformed” the virtual Ryan Hart it used in three versions of its NCAA Football game.

Like the United States, New Zealand is a common law jurisdiction, and while there is no specific cause of action for publicity rights, liability for the unauthorised use of someone’s image or name falls into the realm of the tort of passing off and the protection offered by the Fair Trading Act 1986 (FTA).

Under the FTA the public can be misled if the likeness of a famous person (who has significant reputation or goodwill associated with their name or image) is used to advertise a product without authorisation. We can assume that the “average man” can still be used for advertising purposes without a licence, at least as far as the action of passing off is concerned. While there is little case law to guide us in New Zealand an Australian case Hogan v Pacific Dunlop showed that if the owner of the artistic work does not endorse the product/advertisement referencing it, passing off will be made out.

The New Zealand Copyright Act 1994 applies to use of a photograph but does not offer wide-ranging protection of someone’s image. If wanting to use a photograph in a business sense consent should always be sought from the copyright owner - regardless of whether it’s a photograph is of a well-known person (e.g. an ALL BLACKS rugby player) or an “unknown”.

This article was first published in Managing Intellectual Property, July/August 2013.