Student-Athletes Record Back-to-Back Wins in Video Game Litigation
The last time we visited student-athletes, they had stepped off the field and into court – dueling with the NCAA’s amateurism model in a legal battle to challenge Electronic Arts’ long-standing practice of featuring the players’ likenesses in their video games. While the student-athletes argued, in cases from California to New Jersey, that they had a right of publicity that entitled them to compensation, Electronic Arts ardently defended the case with cries of the First Amendment.
Over the last few months, in two long-anticipated decisions, the courts chimed-in, voicing near unanimous support of student-athletes’ position. The courts, faced with weighing the student-athletes’ right of publicity claims and Electronic Arts’ First Amendment defense, called on a balancing test called the “Transformative Use” test. The Test seeks to look at the two competing rights and assess whether the individual’s image and likeness is so transformed that it is more of an original work of art of the defendant (in this case, Electronic Arts) or whether it lacks those raw materials and creative elements and appears to be more of a mirror image of its original form. The reasoning behind the test is two-fold. First, an item that is transformed (no longer has the exact likeness of the original) is unlikely to cut into an individual’s potential earnings from exercising their right of publicity. And moreover, courts are hesitant to hand down decisions that abridge the First Amendment, which, in this case, Electronic Arts argues preserves a right to creativity and expression in their video game series. The test can be a difficult to apply – there was considerable disagreement within the dissent of both cases, calling out their colleagues for getting it wrong – but it has fallen into favor as the go-to balancing test when faced with the dichotomy between the First Amendment and right of publicity.
The decisions, which were handed down by the Third and Ninth circuit courts sitting in New Jersey and California, respectively, are the final legal stop before a ticket to the Supreme Court. The anticipated potential impact to the rulings on the First Amendment raises speculation that the cases will end up before the Court, a process that begins with an appeal (called a cert petition in the Supreme Court) from Electronic Arts – it’s then up to the Court whether to entertain the cases.
Photo courtesy of Parker Knight, Cerritos College Football Game Highlights (2008).