Thursday, May 30, 2013

A Chance, A Small Chance That Courts Will Rule That College Marketing Organizations and Private Firms Cannot Appropriate a College Athlete’s Persona Without Compensation

And a Long Long Battle To Come

Ryan Hart was a quarterback at Rutgers University a while back.  And without his permission and without compensating him the EA Company took his likeness and inserted it into a football video game.  Now this is obviously wrong.  No business has the right to make money by duplicating the likeness of a person without permission or compensation.  So Mr. Hart sued.

After several years, and after a lower court had dismissed his case, Mr. Hart won a victory in the Third Circuit.  No he didn’t win his case, he just won the right to pursue his case.

Mr. Hart, and no this Forum will not
compensate him for using his likeness
The video game industry is not off the hook just yet. Former Rutgers football player, Ryan Hart, just got the go ahead from the Third Circuit Court of Appeals to continue his Electronic Arts lawsuit. Hart had sued EA for misappropriation of his likeness in their NCAA Football video games depicting a college football player similar to him when he played.

EA said they had the right under the first amendment, freedom of expression, to use Mr. Hart in a video game, just like books and movies can portray real people without their permission and portray fictional characters without violating copyright laws. 

But clearly this is different.  They are simply appropriating his likeness, in effect making him star in a video game even though he has not consented to do so.  Yes Mr. Hart was an amateur athlete, but that does not mean he is not entitled to his rights.

It will take great persistence and many years to settle this issue.  And given the business friendly attitude of courts, it is more likely than not Mr. Hart will lose.  But we wish him well and wish him success.  The exploitation of college athletes, which makes millions for the schools and their partners and nothing, absolutely nothing for the athletes is wrong, just plain wrong.  It is morally wrong, it is legally wrong and it is completely wrong.

Other than that we don’t have a very strong opinion on the subject.

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