By: John Leppler, Ruling Sports Intern (Twitter: @Lepp326)
On May 21, 2013 the United States Appeals Court for the Third Circuit, in a 2-1 decision, reversed the Supreme Court of New Jersey’s holding in favor of Ryan Hart, a former Rutgers University football quarterback, who filed a lawsuit against Electronic Arts for violating his right of publicity.
In bringing his right of publicity lawsuit, Hart was required to prove three elements:
1. There must be an unauthorized use of a protected attribute of the claimant’s name, image, or likeness;
2. The unauthorized use must be for the defendant’s own commercial purposes or financial gain; and
3. The unauthorized use of the claimant’s name, image, or likeness must have been done without the claimant’s consent.
Case law has defined what makes up a person’s “likeness” as being the intangible attributes that are recognizable to the specific person. For example, in Johnny Carson v. Here’s Johnny Portable Toilets, Inc., the United States Court of Appeals for the Sixth Circuit found for the plaintiff, Johnny Carson, in a right of publicity lawsuit by reasoning that the toilet company’s use of “Here’s Johnny” in its name invoked images of Johnny Carson. In finding this, the court found that the toilet company consciously or unconsciously helped promote and sell toilets by exploiting Johnny Carson’s celebrity status. This unauthorized use of Carson’s identifiable catch phrase in the company’s title, even if unintentional, violated Carson’s right of publicity.
With respect to Hart’s case, the Third Circuit’s reversal is meaningful on two accounts. First, The United States Supreme Court has not dealt with a right of publicity case since 1977, when it heard Zacchini v. Scripps-Howard Broadcasting Co. In Zacchini, the Supreme Court in a five-to-four decision held that the First and Fourteenth Amendments do not immunize the news media from civil liability when they broadcast a performer’s entire act without his consent. Additionally, in Zacchini, the Court held that the Constitution does not prevent a state from requiring broadcasters to compensate performers. Hart may require the Supreme Court to revisit its holdings related to the First Amendment in Zacchini, as in the 35 years since Zacchini, the technology by which media and the news are disseminated has greatly advanced.
Second, should the Supreme Court hear the Hart case, it will address any First Amendment issues using a totality of circumstances approach, which was not utilized in its hearing of the Zacchini case. This is due to the fact that the Hart case involves a factual scenario involving student-athletes’ likenesses. In hearing similar cases, lower circuits have utilized a totality of the circumstances analysis. For instance, in CBC v. MLBAM, the United States Court of Appeals for the Eighth Circuit Court found that although the right of publicity for MLB players was violated by a MLB fantasy baseball service, the First Amendment right to use players’ names and statistical information took precedent over the players’ right to publicity. It is likely that the Supreme Court would similarly weigh the circumstances in Hart’s case in deciding the case.
Given the First Amendment issues present in Hart’s case, it is likely to have an impact on other cases brought by former student-athletes should it reach the Supreme Court. The cases in which a Supreme Court ruling on Hart’s case would most greatly impact are Keller v. NCAA, College Licensing Company (CLC,) and Electronic Arts (EA) and O’Bannon v. NCAA, CLC, and EA. Those cases were both brought by former NCAA student-athletes who alleged, amongst other things, that the use of video game characters mirroring their likeness violated their right to publicity.
The Supreme Court hearing Hart’s case prior to the conclusion of the Keller and O’Bannon cases would provide precedent to the circuits in which those cases are being heard on how to apply the First Amendment to new technology, like video games. This guidance would likely be welcomed by those courts, because as noted above, the Supreme Court has not heard a right of publicity case since Zacchini 1977—which is long before video games were a mainstay of American media culture. Given the five-four ruling in Zacchini, it is plausible that the Supreme Court would adopt a new standard for determining whether an individual’s right to publicity has been violated. Such a new standard could greatly impact how two cases that hold serious ramifications for college sports—O’Bannon and Keller—are determined.