Hart v. Elec. Arts, Inc.

Decision Date09 September 2011
Docket NumberCivil Action No. 09–cv–5990 (FLW).
Citation808 F.Supp.2d 757,101 U.S.P.Q.2d 1561
PartiesRyan HART, individually and on: behalf of all others similarly situated, Plaintiff, v. ELECTRONIC ARTS, INC., a Delaware Corporation; and Does 1–50, Defendants.
CourtU.S. District Court — District of New Jersey

101 U.S.P.Q.2d 1561
808 F.Supp.2d 757

Ryan HART, individually and on: behalf of all others similarly situated, Plaintiff,
v.
ELECTRONIC ARTS, INC., a Delaware Corporation; and Does 1–50, Defendants.

Civil Action No. 09–cv–5990 (FLW).

United States District Court, D. New Jersey.

Sept. 9, 2011.


[808 F.Supp.2d 760]

Keith A. McKenna, McKenna McLlwain, LLP, Montclair, NJ, for Plaintiff.

Bruce S. Rosen, McCusker, Anselmi, Rosen & Carvelli, PC, Florham Park, NJ, for Defendants.

OPINION
WOLFSON, District Judge:

This matter comes before the Court on a motion by Defendant Electronic Arts, Inc. (“Defendant” or “EA”) to dismiss Plaintiff Ryan Hart's Second Amended Complaint (“Plaintiff” or “Hart”) pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). The allegations giving rise to Plaintiff's putative class action lawsuit stem from Defendant's purported misappropriation of the likeness and identity of Plaintiff, a former college football athlete, as well as those similarly situated, for a commercial purpose in connection with four of Defendant's NCAA Football video games. Defendant contends that Plaintiff's claims under New Jersey law for misappropriation of his likeness, which claims the Court treats as a single right of publicity claim, are barred by the First Amendment. For the reasons set forth below, the Court treats Plaintiff's motion as one for summary judgment. The Court, further agrees that, on balance, on the facts of this case, Defendant's First Amendment right to free expression outweighs Plaintiff's right of publicity. Accordingly, the Court grants Defendant's motion for summary judgment.

I. BACKGROUNDA. NCAA Football Games

EA produces a video game series annually called NCAA Football. NCAA Football video games permit users to manipulate the actions of over 100 college football teams and thousands of virtual players in a virtual world with simulated games that “allows users to experience the excitement and challenge of college football.” Def.'s

[808 F.Supp.2d 761]

R. 56.1 Stat. at 1.1 The college football teams represented in the game are identifiable by name, as well as through the use of trademarks such as uniform designs and logos.2 Id. at 21. The virtual players are identified by jersey number and position, although a user can edit game data to give the player a surname, which then appears on the player's jersey. See Supp. Decl. of Strauser, Ex. E; Second Am. Compl. at 59. Each virtual player's unique attributes, including personal characteristics (height, weight, athletic ability), accessories (helmet visor, wristband), physical abilities (speed and agility, throwing arm, passing accuracy), and biographical details (place of origin) can also be edited by the user.3 Def.'s R. 56.1 Statement at 14–15. Additionally, users with an Internet connection can modify entire teams by downloading custom rosters that have been created and uploaded by video game consumers, including a section of EA's website called Teambuilder. Second Am. Compl. at 59. Some rosters available on these websites seek to replicate actual current and former football team rosters. See id. at 59–61.

These video games are interactive, and users “most directly influence the games' outcome through their own play-calling and their ability to use their hand-held controllers to manipulate the actions of the virtual players.” Id. at 11. For example, each time during gameplay that a user has the option of throwing a football, the user can control the virtual player's throw distance and accuracy. Id. at 12. Users can choose to play a single game against a game-controlled opponent, a second player connected to the same system, or another person connected to the Internet. Id. at 5. Multi-game options are also available for users. Id. at 18. One of these options is “Dynasty” mode, in which the “user controls a college program for up to thirty seasons, creating his own story of the program's development.” Id. at 19. Users in “Dynasty” mode are tasked with the “year-round responsibilities of a college coach, such as recruiting virtual high school players out of a random-generated pool of athletes.” Id.

B. Plaintiff's First Amended Complaint

Plaintiff filed his First Amended Complaint in the Superior Court of New Jersey, Law Division, Somerset County, on October 27, 2009. In that complaint, on behalf of himself and similarly situated athletes, Plaintiff asserted, among other claims, that Defendant had violated his right of publicity based on its use of Plaintiff's likeness as a virtual player on the Rutgers University football team in EA's 2004, 2005, 2006, and 2009 editions of NCAA Football. 4 First Am. Compl. at 22.

[808 F.Supp.2d 762]

On November 24, 2009, EA removed Plaintiff's action to this Court, and then moved to dismiss all counts of the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In connection with its motion to dismiss, EA attached copies of the video games for the Court's review since the games were referenced in Hart's initial complaint. In arguing for dismissal of the right of publicity claim, EA contended that Plaintiff's claim failed as a matter of law under both New Jersey state law and the First Amendment. See Docket. No. 8 at 10–23. Moreover, EA argued that Plaintiff had not stated a claim for right of publicity because the First Amended Complaint did not identify the attributes of Plaintiff that had been incorporated into the NCAA Football games. Id. at 11.

Plaintiff submitted a brief in opposition to EA's motion to dismiss, as well as a Declaration. Both submissions averred misappropriation of specific attributes of Plaintiff into EA's NCAA Football games. See Court's Sept. 22, 2010 Opinion, Docket No. 23 (“Court's Opinion”), 740 F.Supp.2d 658 at 660–62 (D.N.J.2010). In his Declaration, Plaintiff asserted that the disputed games depicted a “virtual” player that had been designed to replicate Plaintiff's physical attributes, as well as his football skills. Id. at 660–62. Further, Plaintiff contended that Defendant had used video footage of him playing in a Rutgers University Football game “in promotion for ... EA's NCAA game.” Id. at 661. Plaintiff described Defendant's games as allowing consumers “to simulate the college football playing experience by stepping into the shoes of Rutgers' QB Ryan Hart, and other college football players, where fans can mimic Plaintiff's style and movements and play against Plaintiff's actual opponents.” Id. at 662 (citation omitted).

On September 22, 2010, the Court granted Defendant's motion to dismiss the First Amended Complaint with prejudice on all counts with the exception of Plaintiff's right of publicity claim, which it dismissed without prejudice. Id. at 668, 671. The Court determined that it could not consider allegations presented by Plaintiff outside of its pleadings on a motion to dismiss, and subsequently determined that because the First Amended Complaint did not contain allegations “as to what aspects of [Plaintiff's] likeness [were] appropriated” by EA, the Court was unable to decide, as a matter of law, whether Plaintiff could state a right of publicity claim under New Jersey law. Id. at 662–63, 664–65. Nonetheless, the Court did undertake an analysis of New Jersey right of publicity law as it related to the facts alleged in Plaintiff's Declaration and opposition brief, and found that the allegations “appear to state a right of publicity claim under New Jersey law.” Id. at 665. Thus, the Court granted Plaintiff's request for an opportunity to amend his Complaint for the second time, and informed EA that the Court would consider its First Amendment defense if Plaintiff filed a Second Amended Complaint. Id. at 664–65.

C. Plaintiff's Second Amended Complaint

On October 12, 2010, Plaintiff filed his Second Amended Complaint (“Complaint”), in which he alleges that EA violated his right of publicity under New Jersey law by misappropriating and incorporating his identity and likeness for a commercial

[808 F.Supp.2d 763]

purpose in connection with EA's video games. 5 As discussed herein, Plaintiff incorporated the proposed allegations that the Court addressed in its September 22, 2010 Opinion. The Complaint states that Hart's likeness is found in NCAA Football 2004, NCAA Football 2005, NCAA Football 2006, and NCAA Football 2009, in violation of his right of publicity. See Second Am. Compl. at 32. Thereafter, by way of example of the alleged misappropriation of Hart's image, the Complaint makes specific factual allegations about the NCAA Football 2006 game.

With respect to the NCAA Football 2006 video game, the Complaint alleges that “[t]he attributes of the ‘virtual’ player ... are Plaintiff Ryan Hart's physical attributes as referenced in the Rutgers University Football Media Guide.” Id. at ¶ 34. In addition, the Complaint alleges, that “in its NCAA Football 2006 video game, Defendant lists the ... ‘virtual’ player quarterback as hailing from Florida ...,” id. at ¶ 35, “standing six (6) feet and two (2) inches tall,” id. at ¶ 36, and “weigh[ing] one hundred ninety-seven (197) pounds (lbs.) ...,” id. at ¶ 37. The Complaint further alleges that the virtual player wears “Hart's jersey number ... thirteen (13),” id. at ¶ 38, a “left wrist band,” id. at ¶ 39, and “a helmet visor,” id. at ¶ 40. Finally, Hart's “speed and agility rating ... passing accuracy rating [and] arm strength” all reflect actual footage of Hart during his 2005 college season, according to the Complaint. Id. at ¶¶ 41–43. Based on the language of the Complaint, it appears that Hart intends for the allegations related to NCAA Football 2006 to be imputed to NCAA Football 2004 and NCAA Football 2005.

Attached to the Complaint are copies of screenshots taken from NCAA Football games, and a copy of the 2004 Rutgers University Football Media Guide. See Second Am. Compl., Exh. A–E. The media guide...

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  • Hart v. Elec. Arts, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 21, 2013
    ...of publicity, Appellee argued that it was entitled to dismissal or summary judgment on First Amendment grounds. Hart v. Elec. Arts, Inc., 808 F.Supp.2d 757, 766 (D.N.J.2011). The motion was accompanied by a Statement of Undisputed Fact and various supporting materials, including declaration......
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    ...unquestionable that video games in general are entitled to copyright protections as audiovisual works.”); Hart v. Elec. Arts, Inc., 808 F.Supp.2d 757, 778 (D.N.J.2011) (discussing copyrightability of video games in the context of First Amendment issues); see also Midway Mfg. Co. v. Artic In......
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    • U.S. District Court — District of New Jersey
    • May 30, 2012
    ...unquestionable that video games in general are entitled to copyright protections as audiovisual works."); Hart v. Elec. Arts, Inc., 808 F. Supp. 2d 757, 778 (D.N.J. 2011) (discussing copyrightability of video games in the context of First Amendment issues); see also Midway Mfg. Co. v. Arcti......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 21, 2013
    ...of publicity, Appellee argued that it was entitled to dismissal or summary judgment on First Amendment grounds. Hart v. Elec. Arts, Inc., 808 F. Supp. 2d 757, 766 (D.N.J. 2011). The motion was accompanied by a Statement of Undisputed Fact and various supporting materials, including declarat......
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2 books & journal articles
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    • United States
    • ABA General Library Landslide No. 13-1, September 2020
    • September 9, 2020
    ...Elecs. Am., Inc., 989 F.2d 1512, 1515 (9th Cir. 1993). 5. 498 F.2d 821, 827 (9th Cir. 1974). 6. 813 F.3d 891 (9th Cir. 2016). 7. 808 F. Supp. 2d 757 (D.N.J. 2011). 8. 724 F.3d 1268 (9th Cir. 2013). 9. No. 10-cv-03328-RS, 2015 WL 13711705 (N.D. Cal. 2015). 10. 21 P.3d 797 (Cal. 2001). 11. 20......
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    • ABA General Library Landslide No. 13-1, September 2020
    • September 9, 2020
    ...Elecs. Am., Inc., 989 F.2d 1512, 1515 (9th Cir. 1993). 5. 498 F.2d 821, 827 (9th Cir. 1974). 6. 813 F.3d 891 (9th Cir. 2016). 7. 808 F. Supp. 2d 757 (D.N.J. 2011). 8. 724 F.3d 1268 (9th Cir. 2013). 9. No. 10-cv-03328-RS, 2015 WL 13711705 (N.D. Cal. 2015). 10. 21 P.3d 797 (Cal. 2001). 11. 20......

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