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Although she dismissed Hart’s claim that EA violated his “right of publicity,” U.S. District Court Judge Freda L. Wolfson left open the door for him to file an amended complaint in her court that would support the charge.
Hart has until Oct. 11 to file the claim.
Wolfson went on to say that “the sort of allegations [he] proposes suggest that an amendment may not be futile.”
The game doesn’t name any of them specifically, but one of the virtual players has the same physical attributes, skill set — and jersey number — as Hart. What’s more, once fans download player rosters through an EA application, his name magically appears on the back of the jersey.
That, Hart insists, is exploitation. If he owned and used that same likeness, Hart said, he would have collected a huge chunk of the $4 billion he claims EA raked in by using his image.
Other athletes have won similar cases, including a group of retired N.F.L. stars who collected a $26 million settlement after suing the players union for letting EA use their identities in “Madden NFL” without giving them a nickel.
College athletics is a different matter entirely: For one thing, players sign agreements with the NCAA prohibiting them from cashing in on their amateur celebrity.
In court papers, EA argues that the NCAA Football games are “expressive works” entitled to full First Amendment protection.
The NCAA, meanwhile, calls the complaints unfounded and says the games meet the association’s standards.
In fact, the NCAA and its member universities have licensing agreements that allow EA to publish three college-themed video games: NCAA Football, NCAA Basketball and NCAA March Madness.
EA succeeded in having the case dismissed by moving it to a federal venue. Still, Wolfson left Hart room to wriggle out of a sack.
Hart’s lawyers argued that a virtual player in screen shots replicate photos taken of Hart while he was the Rutgers QB from 2002 through 2005. The player is 6-foot-2 and 197 pounds, same as Hart, wears the same left wrist band and helmet visor as him, and is from Hart’s home state: Florida.
Same skill set and jersey number, as well: 13.
What’s more, the virtual player’s speed and agility rating, passing accuracy, and arm strength mirror his own.
Wolfson said the court couldn’t take these arguments into account because they weren’t included in the original complaint. Instead they were filed “in a declaration attached” to papers opposing EA’s dismissal request, Wolfson wrote. That declaration “may not be properly considered on a motion to dismiss.”
However, she said, the law doesn’t prevent Hart from filing an amended complaint.
He may even have a case — or at least that’s what Wolfson apparently indicated:
New Jersey’s right of publicity “signifies the right of an individual, especially a public figure or celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for commercial benefit,” she wrote in her 21-page opinion.
At the same time, the judge threw a wet blanket on Hart’s claim of “unjust enrichment,” as well as his charge that EA, the NCAA and the Collegiate Licensing Company (the NCAA‘s licensing arm) conspired to exploit him, and that he was a victim of consumer fraud.
It wasn’t all one-sided, however. Wolfson said EA’s First Amendment defense didn‘t hold water, and predicted it wouldn’t if Hart succeeds in getting an amended complaint to trial.
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