Should individuals hold veto power over depictions of reality? That's the question at the heart of Hart v. Electronic Arts, Inc., and we here at the Fair Use Project think the answer is a resounding "no."
The case involves EA's NCAA Football videogame, which allows players to simulate the college football experience by controlling realistic digital avatars of real players. (The players are not identified by name, but by number and various objective personal attributes including height, weight, etc.) Hart, a former quarterback for the Rutgers University Scarlet Knights, sued EA, claiming the company violated his right of publicity. On May 21, 2013, a Third Circuit panel agreed with Hart's claim.
On Tuesday, June 5, 2013, the Fair Use Project filed an amicus brief on behalf of the Electronic Frontier Foundation, International Documentary Association, Organization for Transformative Works, and the Digital Media Law Project, urging the Third Circuit to grant EA's petition for rehearing en banc. In our view, the test the Third Circuit chose to use--the "transformative use" test--insufficiently protects the creators of unauthorized factual works, including documentaries, biographies, and biopics, as well as the videogame at issue in Hart. Further, even assuming the test can be sufficiently speech-protective, the panel's application of the test was fundamentally flawed--the court completely disregarded the overall context of the use, tightening its focus on EA's purposefully realistic depiction of Hart without considering the overarching creative context in which he was depicted.
In other words, the court gave far too much weight to Hart's commercial interests without due care for the interests of would-be speakers and their present and future audiences. If we step back for a moment, the implications of the Third Circuit's approach could be disastrous: Should the law grant the Winklevoss twins veto rights over The Social Network? What about giving Al Capone's heirs effective creative control over Boardwalk Empire? And what of allowing the subjects of critical journalism to stifle that criticism in the name of a sanctified publicity right?
We hope the Third Circuit will grant EA's petition and reconsider the panel's misguided decision.
Photo Credit: Nick P.