Appeals court revives case against video game maker
A federal appeals court panel on Tuesday overturned a district court ruling that had dismissed a former Rutgers football player’s lawsuit against video game manufacturer Electronic Arts for illegally using his likeness and biographical information in its college football games.
By a 2-1 vote, judges in the 3rd Circuit returned the case to U.S. District Court in New Jersey for further proceedings consistent with its opinion.
Michael Rubin, a lawyer who argued for the plaintiff before the Circuit Court panel, said Wednesday that when the case resumes at the district court level, his side will file a motion seeking to have the case certified as a class action.
EA spokesman John Reseburg said the company intends to “seek further court review.” Asked Wednesday whether that would mean asking for a review of the case by all judges of the 3rd Circuit or trying to take the case to the Supreme Court, Reseburg said: “It’s too soon to tell.”
Tuesday’s opinion, written by Circuit Judge Joseph A. Greenaway Jr., (and a dissent by Judge Thomas L. Ambro) includes observations about some of the same issues being contested in two other federal cases. There is a wider-ranging anti-trust lawsuit before a federal district court in California against EA, the NCAA and Collegiate Licensing Co., the nation’s leading collegiate trademark licensing and marketing firm, and a case parallel to that one currently under consideration by the 9th U.S. Circuit Court of Appeals.
The anti-trust suit, whose named plaintiffs include former UCLA basketball star Ed O’Bannon, concerns the use of college football and men’s basketball players’ names and likenesses and is heading toward a hearing June 20 on whether it will certified as a class action. If the O’Bannon case is certified as a class action, it likely would bring thousands of current and former college athletes into the case and potentially place billions of dollars in damages at stake.
Meanwhile, three judges from the 9th Circuit are still considering an appeal from EA in a case related to the O’Bannon proceeding that involves former Arizona State and Nebraska quarterback Sam Keller and EA’s use of his likeness in video games.The three judges heard arguments on that matter in July 2012. In a footnote to his Tuesday ruling, Judge Greenaway wrote that the Keller case “is simply our own case incarnated in California.”
A transcript of the oral arguments before Greenaway and the 3rd Circuit panel were entered into the record of the Keller case last October.
Also potentially noteworthy about Tuesday’s ruling: it came after the case had been argued before a panel of judges that included one temporarily assigned to the 3rd Circuit, which has jurisdiction over New Jersey, Delaware and Pennsylvania, from the 9th Circuit, which has jurisdiction over several western states including California. (This judge, A. Wallace Tashima, was not among the judges handling the appeal in the Keller case.)
A ruling in EA’s favor in the Keller case could set the stage for a Supreme Court review because two federal circuit courts would be in opposition on the same legal issue.
The New Jersey case involves Ryan Hart, a Rutgers quarterback for the 2002 through the 2005 seasons. He filed a presumptive class-action suit in November 2009. U.S. District Judge Freda Wolfson dismissed the case in September 2011, saying that EA’s use of Hart’s likeness was protected by the First Amendment, which offers a shield to video games as expressive speech.
However, Greenaway wrote: “As with other types of expressive conduct, the protection afforded to games can be limited in situations where the right of free expression necessarily conflicts with other protected rights. The instant case presents one such situation.”
He noted that EA college football video game’s “success owes to its focus on realism and detail” and that “in NCAA Football 2006, Rutgers’ quarterback, player number 13, is 6’2″ tall, weighs 197 pounds and resembles Hart.”
Greenaway, in another part of the opinion, writes: “… the digital avatar does closely resemble the genuine article. Not only does the digital avatar match Appellant in terms of hair color, hair style and skin tone, but the avatar’s accessories mimic those worn by (Hart) during his time as a Rutgers player. The information, as has already been noted, also accurately tracks (Hart’s) vital and biographical details. . . .
“The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game.”
On a more general basis, Greenaway wrote that EA “seeks to create a realistic depiction of college football for the users. Part of this realism involves generating realistic representations of the various college teams — which includes the realistic representations of the players.”
How this could affect the O’Bannon case remains to be seen.
For example, a filing made public on Monday includes portions of a deposition from one of the other named plaintiffs in the case, former Connecticut basketball player Tate George, in which George said that the avatars in several versions of a video game that are supposed to represent him do not resemble him. George also said the face of his avatar also appears on other players representing other teams.
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