In a closely watched case by the videogame industry and other media, the United States Court of Appeals for the Third Circuit, held in a split decision that Electronic Arts’ NCAA Football videogames did not sufficiently transform Hart’s “identity to escape the right of publicity claim” made by Hart, overturning the District Court’s granting of summary judgment in favor of Electronic Arts. Hart v. Electronic Arts [No. 11-3750].

Ryan Hart, a former college football player, originally brought suit against Electronic Arts, Inc. in 2009 for allegedly violating his right of publicity under New Jersey law, namely by including his likeness and biographical information (but not his name) in a series of NCAA Football videogames. The District Court granted summary judgment in favor of Electronic Arts holding that Electronic Arts’ use was protected by the First Amendment.

The Third Circuit examined different balancing tests between first amendment rights and rights of publicity, including the Predominant Use Test, the so-called Rogers Test, and finally the Transformative Use Test.

The Third Circuit elected to use the Transformative Use Test stating that it “appears to strike the best balance because it provides courts with a flexible – yet uniformly applicable – analytical framework.” Applying the Transformative Use Test, the majority found that Electronic Arts’ use was not sufficiently transformative to escape the protections of Hart’s right of publicity.

The dissent on the other hand applied the same test, but instead felt that the NCAA Football games, viewed as a whole were sufficiently transformative to be afforded First Amendment protections “traditionally afforded to true-to-life depictions of real figures and works produced for profit.” The dissent seemed to feel that the majority elected to apply the Transformative Use Test in too narrow a manner, focusing more on the actual transformation to the individual, rather than the work as a whole.

A similar case, Keller v. Electronic Arts, is also pending in the 9th Circuit in California.

Given the US Supreme Court’s strong statement that video games enjoy the same First Amendment protections as other media (Brown v. Entertainment Merchants Association), it will be interesting to see where this series of First Amendment related litigation ends up.