Judge Joseph Greenaway wrote in the Third Circuit decision that “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; the various digitized sights and sounds in the video game do not alter or transform the appellant’s identity in a significant way.” The standard he’s talking about is called the Transformative Use Test, a weighting system meant to prevent economic harm to individuals by preventing other people from simply reproducing their images for profit, but to guarantee free speech rights by protecting work that, as the Supreme Court ruled in Campbell v. Acuff-Rose Music, Inc., “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The Third Circuit compared the use of Hart’s image by EA to Activision’s reproduction of No Doubt for its Band Hero game, arguing that Hart’s claim was even stronger than No Doubt’s, because while in Band Hero, players contribute their own singing, NCAA Football is designed to let players reproduce Hart’s actions closely.
I’m all for the broad movement to rationalize the treatment of NCAA athletes, and to acknowledge the truth, that they exist in a space between the true amateurs playing ultimate frisbee in college leagues, and professional athletes who are employed by the teams in the major leagues. And the way the Third Circuit ruled, even if it was in Hart’s favor, illustrates how far we have to go to achieve those changes. The bigger fight over whether the NCAA can license current and former players’ images without compensating them is still pending, and is scheduled for a 2014 jury trial. Hart may end up winning the debate over whether EA needs to license the images of college players it’s including in its games. But precisely who EA pays that money to is a problem that we’re at least a year away from solving.