In what may turn into a monumental case for all college athletes, the Third Circuit ruled on May 21, 2013 that a college athlete's right of publicity trumps any First Amendment rights a video game producer may have. The court came to this conclusion by applying the transformative use test for balancing the First Amendment against the right of publicity.
The Third Circuit held that the transformative use test was superior to all other tests by stating, "the transformative use test requires a more circumscribed inquiry, focusing on the specific aspects of a work that speak to whether it was merely created to exploit a celebrity’s likeness,” i.e., “if First Amendment protections are to mean anything in right of publicity claims, courts must begin by considering the extent to which a work is the creator’s own expression."
Ryan Hart, the former Rutgers Quarterback and plaintiff, was not "sufficiently transform[ed]" according to the court. "The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game . . . . This is not transformative."
On the West Coast, perhaps a more famous rights of publicity case remains in the Ninth Circuit, O'Bannon v. NCAA. The district court in that case has already ruled that the First Amendment does not trump college athletes’ rights of publicity, however, it now has Hart v. Electronic Arts Inc., to further support that holding.
The Third Circuit’s 62 page decision can be found here.