It’s safe to say that this has been the year of the virtual in College Football. Of course, we had the whole Manti Te’o virtual girlfriend fiasco. That did not work out so well for the real football player – Te’o slipped into round two of the NFL draft. But Kevin Hart, a former Rutgers quarterback, stands to benefit from his virtual image, thanks to a recent ruling from the United States Court of Appeals for the Third Circuit. That court recently ruled that Hart could pursue a right of publicity claim against EA Sports based on EA’s using Hart’s likeness in a college football video game.

If you have time, read the opinion – it does a very thorough job of explaining the law. In short, the right of publicity gives people the right to control their image – which means they can refuse to allow anyone to use it at all, or they can demand payment for the use. It’s a good thing. And like most good things, it has limits. And the First Amendment is one of those limits. So, for example, Manti Te’o can’t sue me for violating his right of publicity by mentioning his name in this post, because I have a First Amendment right to comment on his situation. But if I used his name on my firm’s Web site and said he endorses us, that would be a problem.

Courts frequently have to balance the interests in these cases, and the Hart case was no exception. EA claimed a video game is protected by the First Amendment, and its use of Hart’s image – which video gamers could alter as they saw fit – made the use “transformative.” That concept is critical in publicity cases. For example, an artist that put charcoal sketches of the Three Stooges on t-shirts lost the right of publicity case that arose from that use, because his sketch added nothing to the Stooges image. But a “sports artist” who included an image of Tiger Woods in a collage celebrating the “Legends of the Masters” won his case, because the court found his use of Tiger’s image to “convey a message about the significance of [Tiger’s] achievement in that event.”

Hart, who found his likeness and biography included in the EA game lost at the trial court, when that court found EA’s use was protected. The Third Circuit, however, failed to see how EA added anything to Hart’s image. As it noted, “[t]he 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; the various digitized sights and sounds in the video game do not alter or transform the Appellant’s identity in a significant way.” The Hart court relied in part on a case involving the band No Doubt and the Band Hero game. In that case, the court found that since the No Doubt avatars played music, they were not transformed in any way. The Hart court could see no difference.

And the fact that players could alter Hart’s image did not sway the court. It felt that would create a gaping loop hole. As one amicus brief noted, “[U]nder [EA’s] application of the transformative test [sic], presumably no infringement would be found if individuals such as the Dalai Lama and the Pope were placed within a violent ‘shoot-em-up’ game, so long as the game include[d] a ‘mechanism’ by which the user could manipulate their characteristics.” Putting aside for a moment how incredibly awesome that game would be, the brief makes a good point – the right of publicity depends on where the image starts, not where it ends up in the hands of a gamer.

Not sure if this case will make it to the U.S. Supreme Court. The Supreme Court could decide not to take it, simply because it’s a pretty fact intensive case. It will be interesting to see what EA does in its next edition of the game.