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Many fans say college sports are about the game and not the money. One New Jersey judge appears to agree, ruling that Electronic Arts (NSDQ: ERTS) does not have to pay ex-Rutgers quarterback Ryan Hart and others for using their images in its popular NCAA Football video game.
In her ruling, U.S. District Judge Freda Wolfson said that the “interactive nature of video games” means the First Amendment protects EA from having to pay to use player images. The decision clashes with a California ruling last year that sided with players led by Sam Keller, an ex-quarterback for Nebraska and Arizona State, and sets the stage for an appeal of when content creators must pay to use real-life characters in video games.
The New Jersey ruling, if upheld, is a big break for EA and others because it saves them from paying “right of publicity” royalties to athletes — payments based on a law that gives celebrities the right to control their image.
The key to the judge’s decision Friday is the fact that the video game allows players to transform aspects of the characters such as their haircuts and to choose the environment they play in. The quarterback, Hart, had argued this was unfair because the video game had created an exact replica of him based on his appearance and from information like his playing stats and his hometown.
The case is a rare break on intellectual property rights for video game makers, which must pay to use many other elements of their popular sports games. In its line of NCAA Football games, for instance, EA must pay to include school names, team names, uniforms, logos, and stadium fight songs. The value of players’ image rights is hard to determine because EA does not break out the cost of licensing in its financial statements. But their value is in part reflected by a 2009 settlement that led the NFL to pay retired players $26.5 million to compensate them for letting EA use their image in its popular John Madden football game.
The California case is currently on appeal to the 9th Circuit and it is likely that the New Jersey case will be appealed as well. The issue may not end there as California courts have typically favored strong celebrity rights while Eastern courts have been more inclined to side with publishing interests.
Video games are not the only area where players are battling to control their image rights. Retired pro football players are suing the NFL to pay them for appearing in the league’s valuable archive of historic games and highlights.