For some time now, Electronic Arts–purveyor of sports video games–has been embroiled in disputes relating to using the likenesses of former college athletes without providing them appropriate remuneration.  There has been the Bill Russell / Ed O’Bannon antitrust suit.  (Names that would never be uttered in the same sentence but for this lawsuit.)  There has also been the lawsuit filed in California by former Nebraska quarterback Sam Keller.  (See here and here).

This past week, the United States Court of Appeals for the Third Circuit waded into the murky waters with an opinion in Hart v. Electronic Arts (opinion here).  The Third Circuit reversed an order by the District of New Jersey dismissing Hart’s suit, thereby breathing life back into the claim.  The case essentially involved a head-to-head clash between First Amendment freedom of speech and state law publicity rights.

The Third Circuit began its analysis by recognizing that video games are, as a general matter, protected as expressive speech under the first amendment.  (Hence the difficulty in banning or censoring games as Grand Theft Auto.)  Free speech, however, is not a full-on trump card, and the Court set about determining what rights would prevail between expressive speech and personal rights of publicity.

The Third Circuit followed a growing trend in applying a transformative use test.  The Court then rejected the argument accepted by the lower court that the fact that the players attributes could be modified in the game rendered the use transformative.

The case was decided with one dissenting judge, who would have held that the interactive nature of video games and the various manner in which the virtual players narratives could be crafted, justified finding the use transformative.