Case 3:09-cv-05990-FLW-LHG Document 54 Filed 09/09/11 Page 1 of 67 PageID: 1032
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`** FOR PUBLICATION **
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`____________________________________
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`::
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`Plaintiff,
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`Civil Action No.: 09-cv-5990 (FLW)
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`OPINION
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`RYAN HART, individually and on
`behalf of all others similarly situated, :
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`::
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`v.
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`ELECTRONIC ARTS, INC., a
`Delaware Corporation; and DOES
`1-50,
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`Defendants.
`____________________________________:
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`WOLFSON, United States District Judge:
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`This matter comes before the Court on a motion by Defendant Electronic Arts,
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`Inc. (“Defendant” or “EA”) to dismiss Plaintiff Ryan Hart’s Second Amended Complaint
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`(“Plaintiff” or “Hart”) pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the
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`alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56(c).
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`The allegations giving rise to Plaintiff's putative class action lawsuit stem from
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`Defendant’s purported misappropriation of the likeness and identity of Plaintiff, a
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`former college football athlete, as well as those similarly situated, for a commercial
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`purpose in connection with four of Defendant’s NCAA Football video games. Defendant
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`contends that Plaintiff's claims under New Jersey law for misappropriation of his
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`likeness, which claims the Court treats as a single right of publicity claim, are barred
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`Case 3:09-cv-05990-FLW-LHG Document 54 Filed 09/09/11 Page 2 of 67 PageID: 1033
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`by the First Amendment. For the reasons set forth below, the Court treats Plaintiff’s
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`motion as one for summary judgment. The Court, further agrees that, on balance, on
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`the facts of this case, Defendant’s First Amendment right to free expression outweighs
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`Plaintiff’s right of publicity. Accordingly, the Court grants Defendant’s motion for
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`summary judgment.
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`I.
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`BACKGROUND
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`A.
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`NCAA Football Games
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`EA produces a video game series annually called NCAA Football. NCAA
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`Football video games permit users to manipulate the actions of over 100 college football
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`teams and thousands of virtual players in a virtual world with simulated games that
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`“allows users to experience the excitement and challenge of college football.” Def.'s R.
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`56.1 Stat. at 1. The college football teams represented in the game are identifiable
`1
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`by name, as well as through the use of trademarks such as uniform designs and logos. 2
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`Id. at 21. The virtual players are identified by jersey number and position, although
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`Plaintiff failed to comply with Local Rule 56.1, which requires a response
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`to Defendant's Statement of Material Facts Not in Dispute to be filed. Loc. Civ. R.
`56.1(a). Plaintiff included a list of "Material Facts" in his brief in opposition, Opp. at
`3-7, but wholly failed to respond to Defendant's purported facts, which is required by
`Local Rule 56.1 . Loc. Civ. R. 56.1(a). As a result, for the purpose of this summary
`judgment motion, the facts submitted by Defendant are admitted and deemed
`undisputed. Malik v. Hannah, --- F.Supp.2d ----, 2011 WL 2580454, *1 (D.N.J. 2011)
`(citing Loc. Civ. R. 56.1(a)).
`Trademarks such as school names, team names, uniforms, logos, and
`2
`stadium fight songs appear in the game through licensing agreements between EA and
`the NCAA’s licensing agent, the Collegiate Licensing Company. Def.'s R. 56.1
`Statement at 21.
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`2
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`a user can edit game data to give the player a surname, which then appears on the
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`player's jersey. See Supp. Decl. of Strausser, Ex. E; Second Am. Compl. at 59. Each
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`virtual player’s unique attributes, including personal characteristics (height, weight,
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`athletic ability), accessories (helmet visor, wristband), physical abilities (speed and
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`agility, throwing arm, passing accuracy), and biographical details (place of origin) can
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`also be edited by the user. Def.’s R. 56.1 Statement at 14-15. Additionally, users with
`3
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`an Internet connection can modify entire teams by downloading custom rosters that
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`have been created and uploaded by video game consumers, including a section of EA’s
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`website called Teambuilder. Second Am. Compl. at 59. Some rosters available on
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`these websites seek to replicate actual current and former football team rosters. See
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`id. at 59-61.
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`These video games are interactive, and users “most directly influence the games'
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`outcome through their own play-calling and their ability to use their hand-held
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`controllers to manipulate the actions of the virtual players.” Id. at 11. For example,
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`each time during gameplay that a user has the option of throwing a football, the user
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`can control the virtual player's throw distance and accuracy. Id. at 12. Users can
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`choose to play a single game against a game-controlled opponent, a second player
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`connected to the same system, or another person connected to the Internet. Id. at 5.
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`Multi-game options are also available for users. Id. at 18. One of these options is
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`Certain biographical data may be altered, i.e., the virtual player’s First
`3
`Name, Last Name, Position, Number, and Hand (right or left-handed). The virtual
`player’s Home State, Hometown, Team, and Year (freshman, senior, etc.) may not be
`altered.
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`"Dynasty" mode, in which the “user controls a college program for up to thirty seasons,
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`creating his own story of the program's development.” Id. at 19. Users in “Dynasty”
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`mode are tasked with the “year-round responsibilities of a college coach, such as
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`recruiting virtual high school players out of a random-generated pool of athletes.” Id.
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`B.
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`Plaintiff's First Amended Complaint
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`Plaintiff filed his First Amended Complaint in the Superior Court of New Jersey,
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`Law Division, Somerset County, on October 27, 2009. In that complaint, on behalf of
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`himself and similarly situated athletes, Plaintiff asserted, among other claims, that
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`Defendant had violated his right of publicity based on its use of Plaintiff's likeness as
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`a virtual player on the Rutgers University football team in EA’s 2004, 2005, 2006, and
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`2009 editions of NCAA Football. First Am. Compl. at 22.
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`On November 24, 2009, EA removed Plaintiff's action to this Court, and then
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`moved to dismiss all counts of the First Amended Complaint pursuant to Federal Rule
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`of Civil Procedure 12(b)(6). In connection with its motion to dismiss, EA attached
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`copies of the video games for the Court’s review since the games were referenced in
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`Hart’s initial complaint. In arguing for dismissal of the right of publicity claim, EA
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`contended that Plaintiff's claim failed as a matter of law under both New Jersey state
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`law and the First Amendment. See Docket. No. 8 at 10-23. Moreover, EA argued that
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`Plaintiff had not stated a claim for right of publicity because the First Amended
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`As New Jersey and federal courts applying New Jersey law
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`interchangeably refer to these claims as appropriation or misappropriation of
`commercial likeness, and “right of publicity,” this Court will do the same.
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`4
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`Complaint did not identify the attributes of Plaintiff that had been incorporated into
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`the NCAA Football games. Id. at 11.
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`Plaintiff submitted a brief in opposition to EA's motion to dismiss, as well as a
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`Declaration. Both submissions averred misappropriation of specific attributes of
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`Plaintiff into EA's NCAA Football games. See Court’s Sept. 22, 2010 Opinion, Docket
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`No. 23 (“Court's Opinion”) at 3-5. In his Declaration, Plaintiff asserted that the
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`disputed games depicted a "virtual" player that had been designed to replicate
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`Plaintiff's physical attributes, as well as his football skills. Id. at 3-4. Further,
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`Plaintiff contended that Defendant had used video footage of him playing in a Rutgers
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`University Football game “in promotion for . . . EA’s NCAA game.” Id. at 4. Plaintiff
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`described Defendant’s games as allowing consumers “to simulate the college football
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`playing experience by stepping into the shoes of Rutgers’ QB Ryan Hart, and other
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`college football players, where fans can mimic Plaintiff's style and movements and play
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`against Plaintiff's actual opponents.” Id. at 4-5 (citation omitted).
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`On September 22, 2010, the Court granted Defendant's motion to dismiss the
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`First Amended Complaint with prejudice on all counts with the exception of Plaintiff's
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`right of publicity claim, which it dismissed without prejudice. Id. at 16, 21. The Court
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`determined that it could not consider allegations presented by Plaintiff outside of its
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`pleadings on a motion to dismiss, and subsequently determined that because the First
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`Amended Complaint did not contain allegations “as to what aspects of [Plaintiff's]
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`likeness [were] appropriated” by EA, the Court was unable to decide, as a matter of
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`law, whether Plaintiff could state a right of publicity claim under New Jersey law. Id.
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`at 6-7, 10. Nonetheless, the Court did undertake an analysis of New Jersey right of
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`publicity law as it related to the facts alleged in Plaintiff's Declaration and opposition
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`brief, and found that the allegations “appear to state a right of publicity claim under
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`New Jersey law.” Id. at 10. Thus, the Court granted Plaintiff's request for an
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`opportunity to amend his Complaint for the second time, and informed EA that the
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`Court would consider its First Amendment defense if Plaintiff filed a Second Amended
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`Complaint. Id. at 10-11.
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`C.
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`Plaintiff’s Second Amended Complaint
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`On October 12, 2010, Plaintiff filed his Second Amended Complaint
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`("Complaint"), in which he alleges that EA violated his right of publicity under New
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`Jersey law by misappropriating and incorporating his identity and likeness for a
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`commercial purpose in connection with EA’s video games. As discussed herein,
`5
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`Plaintiff incorporated the proposed allegations that the Court addressed in its
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`September 22, 2010 Opinion. The Complaint states that Hart’s likeness is found in
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`NCAA Football 2004, NCAA Football 2005, NCAA Football 2006, and NCAA Football
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`2009, in violation of his right of publicity. See Second Am. Compl. at 32. Thereafter,
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`by way of example of the alleged misappropriation of Hart’s image, the Complaint
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`The two-count Complaint asserts “Invasion of Privacy - Misappropriation
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`of Identities and Likenesses” (Count I) and “Electronic Arts’ Misappropriation of
`Plaintiff and Class Members’ Identities and Likenesses is for a Commercial / Trade
`Purpose - (Infringement).” EA argues, and Plaintiff does not dispute, that Plaintiff's
`second “count” is a legal conclusion, and that both counts should be treated as a single
`right of publicity claim because Plaintiff is seeking “redress for an appropriation of the
`commercial value of [his] identity.” Def. Mot. to Dismiss Br. at 16 (quoting J. Thomas
`McCarthy, RIGHTS OF PUBLICITY AND PRIVACY § 1 :35 (2d ed. 2010)). The Court agrees.
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`6
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`makes specific factual allegations about the NCAA Football 2006 game.
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`With respect to the NCAA Football 2006 video game, the Complaint alleges that
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`“[t]he attributes of the ‘virtual’ player . . . are Plaintiff Ryan Hart’s physical attributes
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`as referenced in the Rutgers University Football Media Guide.” Id. at ¶ 34. In
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`addition, the Complaint alleges, that “in its NCAA Football 2006 video game,
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`Defendant lists the . . . ‘virtual’ player quarterback as hailing from Florida ...,” id. at
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`¶ 35, “standing six (6) feet and two (2) inches tall,” id. at ¶ 36, and “weigh[ing] one
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`hundred ninety-seven (197) pounds (lbs.) ...,” id. at ¶ 37. The Complaint further alleges
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`that the virtual player wears “Hart’s jersey number . . . thirteen (13),” id. at ¶ 38, a
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`“left wrist band,” id. at ¶ 39, and “a helmet visor,” id. at ¶ 40. Finally, Hart’s “speed
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`and agility rating . . . passing accuracy rating [and] arm strength” all reflect actual
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`footage of Hart during his 2005 college season, according to the Complaint. Id. at ¶¶
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`41-43. Based on the language of the Complaint, it appears that Hart intends for the
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`allegations related to NCAA Football 2006 to be imputed to NCAA Football 2004 and
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`NCAA Football 2005.
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`Attached to the Complaint are copies of screenshots taken from NCAA Football
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`games, and a copy of the 2004 Rutgers University Football Media Guide. See Second
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`Am. Compl., Exh A-E. The media guide lists biographical facts about Hart, such as his
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`hometown and his physical attributes, such as height and weight. See id. at Exh. A.
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`It, further, describes his football statistics, such as his number of attempts, total
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`offense, and passing yards. Id. The screenshots show images of the virtual player that
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`have been allegedly modeled after Hart. However, Plaintiff did not label the
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`screenshots to link each screenshot to a particular game.
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`Plaintiff’s allegation concerning NCAA Football 2009 is similarly unclear on the
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`face of the Complaint. For one, the Complaint does not allege that the virtual
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`character that purportedly mimics Plaintiff is featured in NCAA Football 2009.
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`Instead, Plaintiff alleges that his “image was used in the promotion for . . . EA’s NCAA
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`Football game wherein [Plaintiff] was throwing a pass with actual footage from
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`Rutgers University's Bowl Game against Arizona State University.” Id. at 45.
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`Plaintiff does not expressly identify the video game in dispute, nor any details about
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`the promotion, but based on allegations found in his First Amended Complaint and
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`Defendant's responses, this allegation appears to be referencing NCAA Football 2009.
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`EA does not dispute that a photo of Plaintiff “throwing a pass appears in a photo
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`montage inside NCAA Football [2009] that can only be seen when a user selects
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`Rutgers as his or her favorite team,” Supp. Decl. of Strausser, Ex. E at 16, Ex. I, but
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`EA contends that it has never used an image of Plaintiff in any advertisement. Def.'s
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`R. 56.1 Statement at 24.
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`Plaintiff avers that these instances of misappropriation of his identity and
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`likeness were “committed with the full intent of increasing the sales and profits for
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`Defendant(s) since [EA’s] heightened realism in NCAA Football videogames translates
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`directly into increased sales and revenues for EA.” Second Am. Compl. at 48.
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`According to Plaintiff, video game consumers demand that these games “simulate
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`actual college football matches in the most realistic manner possible, including the use
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`of the ‘virtual’ players that are modeled after real-life NCAA Football players such as
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`[Plaintiff].” Id. Further, in regards to the users’ ability to upload and download team
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`rosters with names of real-life players, Plaintiff, while not alleging that EA has itself
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`made this information available, does fault EA for “tak[ing] no courses of action to
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`prevent” users from uploading rosters that use real players’ names without
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`authorization. Id. at 59-63. Plaintiff contends that EA’s “courses of action and
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`in-action” on this issue have allowed users to “effectively heighten[] the authenticity
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`and realism of a true NCAA football experience.” Id. at 64-65.
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`D.
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`Instant Motion
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`EA filed the instant motion on November 12, 2010, arguing that the First
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`Amendment to the United States Constitution mandates dismissal of the Complaint
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`pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, summary
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`judgment pursuant to Federal Rule of Civil Procedure 56(c). Plaintiff has opposed this
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`motion, and both parties have filed declarations, affidavits, and exhibits. For the
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`reasons explained herein, the Court elects to treat EA’s motion as one for summary
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`judgment, and finds that summary judgment is appropriate.
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`II.
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`STANDARD OF REVIEW
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`As noted, Defendant has moved for dismissal, or, in the alternative, summary
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`judgment. Defendant opposes consideration under either standard on the basis that
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`discovery is not complete. See Opp. at 8-9. However, Plaintiff fails to identify how
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`discovery would assist the Court in deciding this speech-based tort case. Indeed,
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`Plaintiff states that he “intends to show Defendant’s sales records and
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`anticipate [sic] that the sales of each year’s NCAA Football release remain relatively
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`discovery is irrelevant to a motion to dismiss under Rule 12(b)(6), which is limited to
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`the complaint allegations. And, for summary judgment purposes, it is Plaintiff’s
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`obligation to identify why disposition by way of summary judgment requires discovery.
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`Fed.R.Civ.P. 56(d) (permitting a court to defer considering a motion “if a nonmovant
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`shows by affidavit or declaration that, for specified reasons, it cannot present facts
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`essential to justify its opposition”) (emphasis added).
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`Moreover, the question of whether the First Amendment limits Plaintiff’s right
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`of publicity claim is one of law, and courts answer this type of question by
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`independently reviewing the disputed speech at the summary judgment stage. See
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`Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1016 (3d Cir. 2008) (“[T]he categorization
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`of speech is a question of law that we must resolve through independent review of the
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`program.”); see e.g., id. at 1016 (rejecting First Amendment defense to Lanham Act
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`trademark claims on motion for summary judgment); Hoepker v. Kruger, 200 F. Supp.
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`2d 340, 344, 347-354 (S.D.N.Y. 2002) (under summary judgment standard, examining
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`a challenged work of art and dismissing New York statutory right of privacy claim
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`based on First Amendment defense). In that connection, as indicated supra, EA has
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`provided the Court with copies of the video games for the Court’s review. Furthermore,
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`because the Court will further rely on the affidavits and exhibits submitted by the
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`parties, this motion will be treated as one for summary judgment as opposed to a
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`motion to dismiss.
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`steady.” Pl. Opp. at 19. This “discovery” would have no bearing on the Court’s
`analysis of EA’s First Amendment defense.
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`“Summary judgment is proper if there is no genuine issue of material fact and
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`if, viewing the facts in the light most favorable to the non-moving party, the moving
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`party is entitled to judgment as a matter of law.” Pearson v. Component Tech. Corp.,
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`247 F.3d 471, 482 n. 1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322
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`(1986)); accord Fed. R. Civ. P. 56(c). For an issue to be genuine, there must be “a
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`sufficient evidentiary basis on which a reasonable jury could find for the non-moving
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`party.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); Anderson v.
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`Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue
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`of material fact exists, the court must view the facts and all reasonable inferences
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`drawn from those facts in the light most favorable to the nonmoving party. Matsushita
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`Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem, 298
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`F.3d 271, 276-77 (3d Cir. 2002). For a fact to be material, it must have the ability to
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`“affect the outcome of the suit under governing law.” Kaucher, 455 F.3d at 423.
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`Disputes over irrelevant or unnecessary facts will not preclude a grant of summary
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`judgment.
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`Initially, the moving party has the burden of demonstrating the absence of a
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`genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party
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`has met this burden, the nonmoving party must identify, by affidavits or otherwise,
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`specific facts showing that there is a genuine issue for trial. Id.; Monroe v. Beard, 536
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`F.3d 198, 206-07 (3d Cir. 2008). Thus, to withstand a properly supported motion for
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`summary judgment, the nonmoving party must identify specific facts and affirmative
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`evidence that contradict those offered by the moving party. Anderson, 477 U.S. at
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`11
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`256-57. The nonmoving party “must do more than simply show that there is some
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`metaphysical doubt as to material facts.” Id. at 206 (quoting Matsushita, 475 U.S. at
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`586). Moreover, the non-moving party must present “more than a scintilla of evidence
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`showing that there is a genuine issue for trial.” Woloszyn v. County of Lawrence, 396
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`F.3d 314, 319 (3d Cir. 2005). Indeed, the plain language of Rule 56(c) mandates the
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`entry of summary judgment, after adequate time for discovery and upon motion,
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`against a party who fails to make a showing sufficient to establish the existence of an
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`element essential to that party's case, and on which that party will bear the burden of
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`proof at trial. Celotex Corp., 477 U.S. at 322.
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`Additionally, in deciding the merits of a party’s motion for summary judgment,
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`the court’s role is not to evaluate the evidence and decide the truth of the matter, but
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`to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
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`The nonmoving party cannot defeat summary judgment simply by asserting that
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`certain evidence submitted by the moving party is not credible. S.E.C. v. Antar, 44
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`Fed.Appx. 548, 554 (3d Cir. 2002).
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`III.
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`ANALYSIS
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`For the purposes of this motion, Defendant concedes that Plaintiff has stated a
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`prima facie right of publicity claim under New Jersey law. Mot. at 1. Despite this
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`concession, in its moving papers, EA expresses disagreement with statements of New
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`Jersey law made in this Court’s September 22, 2010 Opinion. In that opinion, which
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`granted EA’s motion to dismiss Plaintiff’s complaint for failure to sufficiently plead a
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`right of publicity claim under New Jersey law, the Court interpreted New Jersey’s
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`right of publicity law and concluded that Hart’s proposed allegations “appear[ed] to
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`state a right of publicity claim under New Jersey law.” Court’s Opinion at 10.
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`To the extent that some of EA’s comments suggest that the Court’s
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`interpretation of New Jersey case law is inconsistent with First Amendment principles,
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`EA misreads the September 22nd Opinion. That opinion focused on the scope of New
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`For example, in footnote 12 of its moving brief, EA takes issue with this
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`Court’s discussion of Castro v. NYT Television, 370 N.J.Super. 282, 296 (App. Div.
`2004), which held that a right of publicity claim could not be lodged by patrons at the
`emergency room of a public hospital who were videotaped and, later, shown on a
`reality-based television program. As explained in the opinion, EA relied upon the
`following language from Castro, to argue that NCAA Football was entitled to First
`Amendment protection: “it is irrelevant whether a videotape is broadcast in connection
`with a television story about important public events or a subject that provides only
`entertainment and amusement ….” 370 N.J.Super. at 298. Def. Mov. Br. on Mot. to
`Dismiss at 13.
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`Castro did not discuss the First Amendment in its analysis of the plaintiffs’
`claim in that case, however. Rather, Castro held that the plaintiffs in that case failed
`to “allege that any of the videotape footage taken of them . . . has been used for ‘trade
`purposes” and, therefore, that the “plaintiffs’ complaints [did] not state causes of action
`for commercial appropriation of their likenesses.” 370 N.J.Super. at 298. EA now
`takes issue with the Court’s comment in the September 22nd Opinion that cases
`interpreting Castro have limited its holding to news-related entities. Court’s Opinion
`at 15 (discussing Liebholz v. Harriri, Civil Action No. 05-5148, 2006 WL 2023186
`(D.N.J. Jul. 12, 2006)). Reading that comment out of context, EA argues that Castro,
`and other cases discussed by this Court in that opinion, do not stand for the proposition
`that the First Amendment distinguishes between media and non-media defendants.
`Read in context, it is clear that this Court was not discussing the First Amendment nor
`opining on whether a ruling that distinguishes between media and non-media
`defendants would be appropriate. Indeed, the paragraph following the Court’s
`discussion of how Castro’s holding has been interpreted explains that the “the
`touchstone of the commercial purpose requirement is whether the publication uses the
`plaintiff’s likeness “for the purpose of capitalizing upon the name by using it in
`connection with a commercial project ….” Court’s Opinion at 15 (emphasis added).
`For EA to now argue that the Court suggested that “non-media’ expressive speech is
`entitled to less First Amendment protection than ‘media’ speech,” Def. Mov. Br. in
`Supp. Mot. to Dismiss at 22, is unfounded.
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`Jersey’s right of publicity claim as expressed by state and federal New Jersey
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`decisional law at that time. The opinion did not address the scope of federal
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`constitutional principles that might affect a New Jersey court’s interpretation of such
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`a claim. Rather, the Court dismissed Hart’s complaint and granted him leave to
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`amend. In so doing, the Court provided an overview of New Jersey’s right of publicity
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`law in ascertaining whether granting leave to amend would be futile. The Court was
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`careful to explain that, in granting Hart leave to amend, “the Court is not holding that
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`Plaintiff’s proposed allegations are sufficient as a matter of law. Rather, the Court
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`merely concludes that the sort of allegations Plaintiff proposes suggest that an
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`amendment may not be futile.” Id. at 16. Without a fully articulated amended
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`complaint before it, the Court chose not to define the precise contours of the
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`misappropriation doctrine, including all potential interpretive effects of First
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`This is not to say that the Castro court’s distinction between media and non-
`media defendants in its trade purposes analysis may reflect the century-old
`“newsworthiness” exception to misappropriation claims, which was an early attempt
`by courts to take into account First Amendment concerns as they related to freedom
`of the press. See generally Amicus Brief of 73 Law Professors in Support of
`Defendant/Appellee Jireh Publishing, Inc., For Affirmance, ETW Corp. v. Jireh
`Publishing,
`Inc., No. 00-3584 at 6-8
`(6th Cir. 2000) available at
`http://jurist.law.pitt.edu/amicus/etw_v_jireh.pdf (arguing that “The Definition of
`Commercial Use in Publicity Law Reflects Understandings of the First Amendment
`from the Early Twentieth Century”). While more recent cases make clear that non-
`newsworthy works are likewise entitled to First Amendment protection, as discussed
`herein, the Castro court did not explicitly address First Amendment concerns.
`Moreover, as EA recognizes, the defendant in that case was a media defendant, thus,
`the Castro court did not address the applicability of its holding to non-media
`defendants.
`
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`Amendment doctrine.6
`
`Indeed, at the time the Court issued its September 22, 2010 Opinion, the New
`
`Jersey Supreme Court had not addressed the misappropriation tort and the First
`
`Amendment in one case. A decision by the New Jersey Supreme Court rendered after
`
`this Court’s September 22, 2010 opinion, and after the parties’ initial briefing in this
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`case, jointly considers the prima facie misappropriation elements and First
`
`Amendment principles.7
`
`In G.D. v. Kenny, 205 N.J. 275 (2011), the New Jersey Supreme Court held that
`
`the use of a political aide’s criminal history in a campaign flyer, created by a public
`
`relations and marketing firm at the request of a political opponent, failed to satisfy the
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`commercial purpose element of the misappropriation tort. Id. at 311. In reaching that
`
`conclusion, the Court reasoned:
`
`That the . . . defendants are in the business of public
`relations and marketing and prepared the campaign flyers
`
`This approach of focusing first on whether a prima facie case
`6
`misappropriation claim is properly pled before ruling on a First Amendment defense
`to that claim is the approach taken by a recent California district court decision that
`EA cites to in a supplemental memorandum to this Court. See EA Supp. Memo dated
`Sept. 6, 2011. That case, Arenas v. Shed Media US, Inc., No. CV 11-05279, Slip Op.
`(C.D.Cal. Aug. 22, 2011), involved a NBA player’s motion for a preliminary injunction
`against the producers of Basketball Wives, a reality television show starring current
`and former significant others of professional basketball players. The Arenas court first
`held that the NBA player sufficiently pled a prima facie misappropriation case, under
`California law, for the use of his identity. Slip Op. at 6. Only after concluding that the
`prima facie case was properly pled did the court consider the producer’s First
`Amendment defense. Id. at 8.
`EA’s reply brief for the instant motion was filed on January 20, 2011, and
`7
`G.D. was decided on January 31, 2011.
`
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`does not make publication of the flyers a publication in the
`commercial sense. The campaign flyers represented
`political speech attacking the judgment of a candidate
`running for public office. This is the type of speech that is at
`the heart of First Amendment guarantees. That books,
`newspapers, and magazines are published and sold for
`profit does not prevent them from being a form of expression
`whose liberty is safeguarded by the First Amendment.
`[Plaintiff] cannot show that the use of his name and image
`constitutes the tort of misappropriation of one's name and
`image for a wrongful purpose.
`
`
`Id. at 311-12 (internal quotation marks and citations omitted). While the G.D. Court
`
`did not explicitly define the relationship between the misappropriation tort and the
`
`First Amendment, nonetheless, by including First Amendment rationale in its analysis
`
`of the plaintiff’s prima facie case, the Court construed the tort in a manner to avoid
`
`conflict with First Amendment principles.
`
`Because of EA’s decision not to challenge the sufficiency of Hart’s right of
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`publicity allegations for the purpose of this motion, the Court will focus solely upon
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`EA’s assertion of the First Amendment defense—rather than upon how a New Jersey
`
`court might construe the prima facie elements of the right of publicity. For this reason,
`
`the Court finds EA’s inclusion of its disagreement with the Court’s interpretation of
`
`New Jersey right of publicity law in several footnotes throughout its brief not only
`
`irrelevant to the motion but also a distraction from the issue at hand—the scope of
`
`EA’s First Amendment defense.
`
`Turning now to the First Amendment defense, the parties dispute whether the
`
`First Amendment trumps Plaintiff’s claim. In EA’s opening brief, it argued that the
`
`First Amendment bars Plaintiff's right of publicity claim because NCAA Football video
`
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`games constitute protected expressive works. Plaintiff disagreed, in its opposition
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`papers, contending that the NCAA Football games constitute speech made for
`
`commercial purposes that is not afforded extensive First Amendment protections.
`
`While the motion was under consideration, the United States Supreme Court
`
`decided Brown v. Entertainment Merchants Ass’n, 131 S.Ct. 2729 (2011). That suit
`
`involved a First Amendment challenge to a California statute that “prohibits the sale
`
`or rental of ‘violent video games’ to minors, and requires their packaging to be labeled
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`‘18.” Id. at 2732. Violation of the statute was punishable by civil fine. Id. In light of
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`Brown’s potential applicability to the instant motion, the Court directed the parties to
`
`file supplemental briefs discussing that decision.
`
`In ruling that the statute was unconstitutional, the Supreme Court confirmed
`
`that video games are entitled to First Amendment protection:
`
`Like the protected books, plays, and movies that preceded
`them, video games communicate ideas—and even social
`messages—through many famil