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EA Wins Dismissal In NCAA Player Likeness Suit
EA Wins Dismissal In NCAA Player Likeness Suit
September 9, 2011 | By Kyle Orland

Electronic Arts has won a dismissal in a case brought by Rutgers University quarterback Ryan Hart that alleged the company didn't have the legal right to use his likeness in its NCAA Football titles.

Reuters reports that U.S. District Judge Freda Wolfson accepted EA's arguments that its First Amendment right to free expression overruled the privacy rights of Hart and other NCAA players to protect use of their name and likeness.

While EA's NCAA Football 2006 didn't refer to Hart by name, his lawsuit pointed out that the "virtual QB" for Rutgers in the game shared Hart's general appearance, attributes, uniform number, height, weight, visor, home state, and even a distinctive left hand wristband Hart wore.

Judge Wolfson had previously dismissed most of Hart's claims in a September 2010 ruling, but left room for Hart to submit an amended complaint, which has now also been dismissed.

In the 2010 ruling, Wolfson said that the validity of EA's first amendment defense "depends upon whether the video game is considered commercial speech or an artistic work." The U.S. Supreme Court ruled in June that video games are expressive works that do indeed merit full first amendment protection.

EA lawyer Elizabeth McNamara told Reuters she thought the ruling "validates Electronic Arts' rights to create and publish its expressive works."

The ruling may have implications for similar, ongoing cases brought by Arizona State quarterback Sam Keller and former Cleveland Browns player Jim Brown. Both of those cases are currently being appealed to the federal Ninth Circuit Court.

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Martain Chandler
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Oh this is not going to end well.

John McMahon
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What about an actor's likeness? What is the difference?

matt landi
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The names of the players aren't used in the NCAA games. However, the players' physical attributes and specific skill sets are used in the game. Most of the faces are not recognizable as the player they're supposed to be representing.

matt landi
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Forgot to mention that I see this as a more of problem with the NCAA. Some reform is definitely needed.

Duong Nguyen
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Physical attributes are so generic how can you say they belong to you? Does any character 5'11 or blond hair suddenly belong to you if you happen to have those physical attributes? You'll have to prove it well beyond doubt that they stole his character.. A likeness is based off your face and speech which is unique among humans. The chance of another human having the exact same face and vocal patterns is probably 1 in billion. It's unique enough to create a bio metric fingerprint using just those 2..

Jonathan Hobbs
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Duong: It's not just any one of the physical attributes - it's the whole of them combined. The iconic armband is just a clincher that EA went out of their way to make a Hart model.

Zach Grant
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Just start paying them already. College football is like a sweat shop, preying on kids hopes and dreams to make colleges and companies like EA billions of dollars

Daniel Zeligman
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Except sweat shop workers don't get full scholarships and thus a free college education that thousands of Americans are in debt for.

E Zachary Knight
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Not all college football players or athletes in general get full ride scholarships. I knew several players from OSU when I was going there that were working their way through college while playing football.

Tom Baird
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GTA and others have been doing similar things for years with cars. They frequently use unlicensed vehicles that are easily recognizable but named something slightly different, allowing them to avoid licensing. It's more personal when it applies to an actual person, but I don't see how it would be different from a legal standpoint.

Sherman Luong
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Things have changed somewhat like the movie industry. Instead of why should I pay you to use your car in my game when you should pay me to use your car in my game.

Hayden Dawson
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This is always going to be a hard sell because often buried in the paperwork all students sign upon enrolling is general approval to use their likeness on the colleges' behalf. This allows photographs of public gatherings or whatnot to be used without further approval.

raigan burns
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So... does this mean I can have a "Dwayne Greatski" #99 character in the hockey game I'm working on?