“Groove is in the Hart ”: A Workable Solution for Applying the Right of Publicity to Video Games

Table of ContentsI. Introduction 318II. The Right of Publicity: Origin, History, and Development 323A. Source of the Right........323B. Defining the Right of Publicity 25C. Justifying the Right of Publicity.......327D. How Various States Apply the Right of Publicity.......330III. Precedent: Seminal Right of Publicity Cases and Cases in the Video Game Context.....32A. Seminal Right of Publicity Cases........3331. Zacchini v. Scripps-Howard Broadcasting Co.......3332. Rogers v. Grimaldi: The Rogers Test.....3343. White v. Samsung Electronics America, Inc.....3364. Comedy III Productions, Inc. v. Gary Saderup, Inc. : The Transformative Use Test........3385. Winter v. DC Comics.....3396. Doe v. TCI Cablevision: The Predominant Use Test 340B. Video Game Right of Publicity Cases 3421. Kirby v. Sega of America, Inc........3422. Romantics v. Activision Publishing, Inc 3433. No Doubt v. Activision Publishing, Inc 3454. Hart v. Electronic Arts, Inc. and In re NCAA Student-Athlete Name & Likeness Licensing Litigation (Keller) 347IV. Scholars' Suggested Alternatives to Current Tests........353V. A Better Alternative: The Readily Identifiable Standard 360A. Goals in Crafting a New Test...... 361B. The Readily Identifiable Standard Explained 366C. Applying the Readily Identifiable Standard to Existing Precedent 373VI. Conclusion.........377I. IntroductionThe Arizona State quarterback wearing number "9" on Electronic Arts' NCAA Football 2005 video game is a 6'4", 235pound specimen of an athlete.1 He wears a black wristband on his right throwing arm and a white quarterback wristband on his left.2 His uniform includes the "Nike swoosh" on the left shoulder just to the side of the jersey's gold collar.3 The quarterback's maroon helmet has a gold stripe down the center and features a facemask resembling a "Schutt OPO," the design currently worn by National Football League (NFL) quarterbacks Tom Brady and Tony Romo.4The Rutgers University quarterback wearing the number "13" jersey appears equally lifelike in this same game.5 He is a bit smaller than his Arizona State counterpart, listed in the game at 6'2", 197 pounds.6 He wears two white wristbands and has a similar "Nike swoosh" on his left shoulder.7 His facemask resembles the lightweight "Schutt OPO-SW" that is also popular among professional quarterbacks.8 It is nearly impossible to miss his thick eye black.9A college football fan who plays the game and is familiar with Sam Keller will certainly recognize Arizona State's number "9" as representing Keller, and anyone not familiar with Keller can clearly see the similarity between his picture and the image used in NCAA Football. Ryan Hart, the Rutgers quarterback, is equally identifiable in the game, down to the remarkably similar skin tone. The characters in the game, while not identified as Keller and Hart by name, have the same biological statistics, home states, and playing styles as the real quarterbacks who both had moderately successful college football careers but who were by no means All-Americans.10Both Keller and Hart sued Electronic Arts for violating their rights of publicity.11 The right of publicity is a common-law doctrine that some states have statutorily adopted.12 Although defined differently by the states that recognize it, the right of publicity is broadly recognized as an individual's right to protect her name and persona from commercial exploitation.13 The issue in Keller's and Hart's cases is whether the First Amendment right to free speech protects Electronic Arts' use of the plaintiffs' likenesses in the NCAA Football games or whether the former athletes' publicity rights outweigh Electronic Arts' constitutional interests. …