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The Erosion of Creative Freedom? The Battle over Publicity Rights

July 11, 2012 Article Start Page 1 of 3 Next
 

[Rutgers professor and lawyer Greg Lastowka explains why he believes that EA should prevail in its case against Rutgers quarterback Ryan Hart, who's suing the company because his likeness has appeared in NCAA Football -- and the considers the broad implications of a loss or a win for Hart.]

Ryan Hart is one of the most famous quarterbacks in the recent history of Rutgers football. He led the 2005 Scarlet Knights to the Insight Bowl, the first bowl game that Rutgers had played in decades.

Four years later, Hart took on another leading role, this time as the named plaintiff in a class action lawsuit against Electronic Arts. Hart's legal team claims that EA has infringed Hart's "right of publicity". Hart also claims EA infringed the rights of other college players by including their information and statistics in EA's college football games without authorization.

Specifically, Hart's complaint is about a nameless quarterback that appears on the Rutgers team in EA's 2004, 2005, and 2006 games. The player wears jersey number 13, is six feet and two inches tall, weighs 197 pounds, wears a wristband on his left wrist, and hails from Florida.

Not coincidentally, that is all true of Ryan Hart. Since the EA games additionally have allowed players to fill in names on team rosters, many people play the nameless Ryan Hart under the name Ryan Hart. Downloadable and accurate rosters of all the featured college teams are currently shared online.

Last fall, a federal district court dismissed Hart's case, explaining that the free speech rights of Electronic Arts trumped Hart's right of publicity claims. Hart appealed and now is arguing his case before a federal appellate court in Philadelphia. Along with several other professors, I submitted a brief to the court explaining why Hart should lose his appeal. Below, I'll explain why.

It's important to see, at the outset, that Hart has a good reason to be bothered by the money being made off his identity. The court that dismissed his case suggested he had been treated unfairly and stated it "appreciates the plight of college players." That plight is primarily about the way money works in college sports.

Ryan Hart was a star Rutgers player during an era when the university was building a new hundred million dollar stadium and negotiating a million-dollar-plus contract with the football team's coach. Universities don't spend money like that without anticipating some significant returns on their expenditures. Yet despite all the money flowing into Rutgers football, Ryan Hart was never paid a dime.

Indeed, Hart could not be paid, because the rules of the National Collegiate Athletics Association forced Hart to be an "amateur". The NCAA excludes any player who takes money from playing NCAA sports. The NCAA's President, Mark Emmert, recently explained that it is "grossly unacceptable and inappropriate to pay players".

Yet while the NCAA says this, its licensing agent, the Collegiate Licensing Company, rakes in over four billion dollars a year in revenues. Since 2005, the CLC has granted EA an exclusive license to make its NCAA football games. When EA includes NFL players in its games, the revenues are shared with those players. The NCAA, however, doesn't share its revenues with players like Hart.

Many people, myself included, think that Hart has been exploited. Undergraduate athletes are too often used and abused as free labor to build multi-million dollar entertainment and licensing empires. We can't shrug this off by thinking that college sports are training grounds for professional play, since it is extremely rare for NCAA players to turn pro. Take Ryan Hart, for example. After graduating from Rutgers, he tried out for the New York Giants, but he did not make the cut. Today, he works in the insurance industry. Even for many star players, this is the standard story.


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