Hart v. Elec. Arts

An artist depicting a celebrity must contribute something more than a 'merely trivial' variation, [but must create] something recognizably 'his own,' in order to qualify for legal protection.

Opinion (Greenaway): Ryan Hart ("Hart"), a college football player, brought suit against Electronic Arts, Inc. ("EA") for violating his right of publicity by using his likeness and biographical information in its videogames (NCAA Football). EA copied Hart’s likeness by creating an avatar that had almost identical biographical, vital, and football statistics. The court declined to use the Rogers publicity test because it would provide too much protection, instead it opted to use the Transformative Use Test. The Winter court summarized the test as "[a]n artist depicting a celebrity must contribute something more than a 'merely trivial' variation, [but must create] something recognizably 'his own,' in order to qualify for legal protection." The avatar looked similar and wore the same type of clothes and accessories as Hart; like a wrist band on the same hand. EA argued that because the look and stats of the avatar were alterable, the Transformative Use Test was not violated. The Court stated that the mere ability to alter an image did not pass the Transformative Use Test, but instead considered whether the identity of the person was maintained. The Court also pointed out that if big changes were made the likeness simply would not exist and therefore the likeness would pass the Transformative Use Test. Accordingly, the Court REVERSED and REMANDED the case.