## Facts

- Ryan Hart was the starting quarterback for Rutgers University’s NCAA Division I football team from 2002 to 2005.
- Electronic Arts, Inc. published the *NCAA Football* video game series, designed to depict college football teams and players with realistic details.
- In *NCAA Football 2004–2006*, the Rutgers starting quarterback avatar shared numerous attributes with Hart, including jersey number (13), height and weight (6’2”, 197 lbs.), home state, hometown, class year, and a physical resemblance.
- The games permitted user customization of players, but the default rosters and avatars were presented as the realistic baseline and were central to the games’ market appeal.
- Hart alleged EA used his likeness and biographical information without consent or compensation, including use of his image in an in-game video clip with actual Rutgers game footage.
- Hart brought a New Jersey right-of-publicity claim; EA argued that, even if it violated that right, the First Amendment barred liability.
- The district court granted summary judgment to EA on First Amendment grounds, and Hart appealed.

## Issues

1. What legal test should govern the conflict between New Jersey’s right of publicity and the First Amendment in a realistic sports video game.
2. Whether EA’s depiction of Hart in the *NCAA Football* games was sufficiently transformative to receive First Amendment protection.
3. Whether optional user modifications to the default avatar affect the transformative-use analysis.
4. Whether a photograph of Hart appearing in *NCAA Football 2009* was protected by the First Amendment.

## Decision

- The Third Circuit reversed the grant of summary judgment for EA and remanded.
- The court adopted the transformative use test to balance First Amendment protections against New Jersey’s right of publicity.
- Applying that test, the court held the *NCAA Football 2004–2006* Rutgers quarterback avatar did not sufficiently transform Hart’s identity to defeat the publicity claim as a matter of law.
- The court held that the ability of users to customize players did not transform EA’s default depiction for purposes of the First Amendment defense.
- As to *NCAA Football 2009*, the court concluded the only apparent use of Hart’s likeness there—a photograph—was protected by the First Amendment, but Hart’s overall claim still should have survived summary judgment.

## Legal Principles

- New Jersey recognizes a right of publicity protecting an individual’s proprietary interest in the commercial value of identity against unauthorized commercial exploitation.
- Video games are expressive works entitled to full First Amendment protection, but that protection may be limited when a work appropriates a person’s identity in a manner not justified under the governing balance.
- Under the transformative use test, a defendant’s use is protected when it adds significant new expression, meaning, or message such that the likeness is merely raw material for the defendant’s own expression, rather than the sum and substance of the work’s value.
- The transformative-use inquiry focuses on the defendant’s depiction as presented, not on speculative changes users may later make through customization features.
- A depiction that closely replicates an athlete’s role, physical traits, and biographical details within the same competitive setting may be insufficiently transformative, even within a broader expressive game environment.

## Conclusion

The Third Circuit held that EA could not obtain judgment as a matter of law on First Amendment grounds because the realistic *NCAA Football* avatar replicated Hart’s identity with minimal alteration, failing the transformative use test; the case was remanded for further proceedings on the New Jersey right-of-publicity claim.


Hart v. Elec. Arts, Inc., 717 F.3d 141 (3d Cir. 2013)