Writers, and other creative folk, have a difficult enough time dealing with inconsistent copyright and trademark law in the U.S., even when those inconsistencies are detailed questions like "how many notes can I sample before I'm infringing?" (Sixth Circuit: three notes infringes; elsewhere... no consensus, but clearly more than three). When the underlying grievance turns not on the at-least-uniform-everywhere federal statute, but on the various state laws of fifty states, the District of Columbia, the Commonwealth of Puerto Rico, and whatever "federal common law" there is in the area (and one should note that a majority of the states' law isn't statutory!); and when the context of that underlying grievance implicates antitrust law, unfair competition, the Labor-Management Relations Act and related labor laws, and the multibillion-dollar gaming industry — not to mention sovereign immunity of arm-of-the-state educational institutions — we're in for a good time.
And we were. In a 2–1 decision issued by the Third Circuit last week (and, amusingly for those of us with grim senses of humor, the panel included a judge from a different court sitting by designation), a breach of right of publicity claim by the former quarterback at Rutgers (a state university) against Electronic Arts (the maker of an NCAA football electronic game) and the NCAA was returned to the lower court for process toward trial. The 70-page-plus opinion in Hart v. Electronic Arts, Inc., No. [20]11–3750 (PDF) rather transforms a variety of issues.
The facts are seemingly basic and seemingly nuanced; the opinions are... insanely complex, nuanced bludgeons. Mr Hart was the quarterback at Rutgers (the state university of New Jersey) from 2002–05. NCAA shamateurism rules prohibited him from personally profiting from exploiting his rights of publicity as a player; indeed, only his university and the NCAA could do that. And so they licensed a whole buncha stuff to Electronic Arts for NCAA Football, an electronic game that specifically attempts to allow players to select teams and years. Thus, a player selecting the 2005 Rutgers Scarlet Knights for play (either for or against) would be selecting player 13 as the Rutgers quarterback — which, even though the name is not on the back of the jersey (pun intended), was modelled after Mr Hart in both playing characteristics and appearance. Mr Hart sued for a share of the profits, probably in the form of a license fee. The District Court eventually decided that — leaving aside all of the other issues, which are a jurisprudential swamp at best — Electronic Arts' game is protected from a right-of-publicity claim by the First Amendment as free expression.
For the moment, I'm going to focus on just the way this First Amendment analysis relates to depictions of real people. Although the rest of the case is fascinating to me as an IP nerd and civil procedure geek (both the Court of Appeals and the District Court evaded considering their own jurisdiction, for example... and it's not as easy an issue as it might seem), there is plenty of fact-bound material to get lost in. Further, there's that rather passionate dissent. If there's one thing this panel agreed upon, though, it's that the NCAA's rules regarding so-called "student athletes" are unjust and indefensible:
EA's use of actual college athletes' likenesses motivates buyers to purchase a new edition each year to keep up with their teams' changing rosters. The burn to Hart and other amateur athletes is that, unlike their active professional counterparts, they are not compensated for EA's use of their likenesses in its video games. Were this case viewed strictly on the public's perception of fairness, I have no doubt Hart's position would prevail.2
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2. See generally Taylor Branch, The Shame of College Sports, The Atlantic, Oct. 2011, at 80–110 (lambasting NCAA "amateurism" and "student-athlete" policies as "legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes," and discussing lawsuits challenging these policies); see also Alexander Wolff, When Worlds Collide, Sports Illustrated, Feb. 11, 2013, at 18; Joe Nocera, Pay Up Now, N.Y. Times Mag., Jan. 1, 2012, at 30–35 (advocating payment of college athletes to alleviate "[t]he hypocrisy that permeates big-money college sports" arising from amateurism rules).
Slip op. at 64–65 (Ambro, J., dissenting). The majority opinion, while not explicitly excoriating the NCAA and Electronic Arts for taking advantage of a captive publicity source, in its "analysis" of the transformative-use test (slip op. at 45–51) silently accepts that the NCAA/EA use of "real athletes" is at least somewhat sleazy.
That, however, takes us back to civil-procedure land, because the Hart opinion relies heavily on California — not New Jersey — law regarding athletes and publicity, while rejecting the much-closer-to-the-facts (in a sick and twisted {pun intended} way) rationale put forth by the Missouri courts in Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) (en banc) on the ground that
By our reading, the Predominant Use Test is subjective at best, arbitrary at worst, and in either case calls upon judges to act as both impartial jurists and discerning art critics. These two roles cannot co-exist. Indeed, Appellant [Hart] suggests that pursuant to this test we must evaluate "what value [Appellee is] adding to the First Amendment expressiveness [of NCAA Football] by appropriating the commercially valuable likeness?" Since "[t]he game would have the exact same level of First Amendment expressiveness if [Appellee] didn't appropriate Mr. Hart's likeness," Appellant urges us to find that NCAA Football fails the Predominant Use Test and therefore is not shielded by the First Amendment. Such reasoning, however, leads down a dangerous and rightly-shunned road: adopting Appellant's suggested analysis would be tantamount to admitting that it is proper for courts to analyze select elements of a work to determine how much they contribute to the entire work‟s expressiveness. Moreover, as a necessary (and insidious) consequence, the Appellant's approach would suppose that there exists a broad range of seemingly expressive speech that has no First Amendment value.
Slip op. at 25–26 (citations and footnote omitted). All well and good; as noted in my recent discussion of Cariou, there's plenty of good reason to keep artistic judgment out of the hands of lawyers, and that necessarily includes judges. The problem with Hart is that its adoption of the "transformative use test" — and even its dissent's approval of a different variety of "transformative use test" — is ultimately just as "subjective" and "arbitrary" as the predominant-use test of Doe that it rejects. Indeed, there's a more than faint whiff of the unsavory context of exploiting athletes in the specific factual analyses in both the majority opinion (slip op. at 52–54, 57–59) and dissent (slip op. at 71–73); Judge Ambro may have dissented, but he certainly wasn't happy about it!
The fundamental problem raised in Hart is one that writers (whether for print or other forms) and artists must grapple with all the time: How much of "reality" can I put into my work without getting explicit permission, and probably paying for that permission? This extends well beyond rights of publicity claims, like those in Hart, to invasion of privacy claims, to even copyright claims in architecture or works of art that appears in the background of motion pictures (or, presumably, video games!). In Hart, the judges agree to substitute one particular variety of subjective, arbitrary test for a different one; indeed, the particular disagreements between the majority and the dissent on how the facts and expression in this particular video game should be analyzed under that test more than adequately demonstrates that it is subjective!
Of course, the context of this particular dispute matters a great deal, too. Hart is not a political figure, but a commercial-and-entertainment figure; I strongly suspect that if the video game had been a simulation of the New Jersey state government, including real figures from New Jersey politics, the outcome would have been different. Similarly, if the game had been a simulation of the New Jersey waste-management industry — including a variety of stereotypical allegations of mob control — the reasoning might have trended much closer to that in Doe than that in Comedy III.
So, in the end, writers just can't learn a helluva lot about the legal limits of their craft and expression from Hart. Leave aside that this is far from a final decision — it exposes such significant conflicts of authority that I give it a 50% chance or so of being heard by the Supreme Court on certiorari, presuming an even modestly competent petition — its choice of rationale is subjective and arbitrary, and its analysis is subjective and arbitrary. The problem is that the judges essentially had no choice: What they (both the District Court and Court of Appeals judges) were confronted with is something that is inherently subjective and arbitrary, but upon which they must decide because our societal structure has left no other means of resolving the dispute. I wish that they would not have pretended that some version of the transformative-use test is, in reality, any less arbitrary than the predominant-use test (or the Rogers test that was also rejected)... but the majesty of the law, such as it is, often requires pretending that things are less arbitrary and subjective than they are.