Upon Further Review of Hart v. Electronic Arts: New Article Proposes Partial Recovery for Partially Transformative Use

Back in September 2011, the U.S. District Court for the District of New Jersey ruled in Hart v. Electronic Arts, 808 F. Supp. 2d 757 (D.N.J. 2011) that videogame publisher Electronic Arts may use college athletes' likenesses in its videogames because "there are sufficient elements of [Electronic Arts'] own expression ... that justify the conclusion that its use of the image is ... entitled to First Amendment protection." (Previously blogged about on Sports Law Blog here).

To many, the district court's decision in Hart was controversial, not only because it subordinates the rights of college athletes, but also because it expands what courts have traditionally defined as "transformative use" of one's likeness. For example, the court in Hart concluded that Electronic Arts' inclusion of“virtual stadiums, athletes, coaches, fans, sound effects, music andcommentary” makes use of player likenesses in NCAA Football "transformative." Nevertheless, the U.S. Court of Appeals for the Ninth Circuit had previously held in Hilton v. Hallmark Cards that First Amendmentprotection applies only where “a product containing a celebrity’s likeness isso transformed that it has become primarily the defendant’s own expressionrather than the celebrity’s likeness.”

After several months of contemplating the district court's ruling in Hart v. Electronic Arts, I have released a draft of my upcoming Florida Law Review article, entitled "Closing the Free Speech Loophole: The Case for Protecting College Athletes' Likenesses in Commercial Videogames." In this article I argue that the partial transformation to a person's likeness via digital format -- whether it be by adding additional background elements, or by changing one's jersey number, height or hairdo -- should not be seen as a complete bar to recovery under right of publicity law.

Instead, I argue that a partial transformation to one's likeness should be deemed as a partially mitigating factor that may reduce the infringer's liability, but would not reduce it to zero. Thus, under this alternative assessment, college athletes whose likenesses appear in college football videogames would be entitled to partial recovery.

For those interested in further discussion of college athletes' publicity rights in commercial videogames and the idea of partial recovery for partial transformative use of one's likeness, a full copy of my upcoming law review article is available here.

"Dear Colleague" Letter Regarding PASPA

On April 26, 2012, U.S. Congressmen Frank Pallone and Frank Lobiondo (both from New Jersey) released a "Dear Colleague" letter explaining the impetus for the two bills they recently introduced pertaining to PASPA, the 1992 federal statute prohibiting state-sponsored sports gambling in all jurisdictions except Nevada, Montana, Delaware, and Oregon. An excerpt from the letter is below:

"We have developed two separate, but equally effective, pathways toward the same goal of bringing sports gaming and the economic benefits it yields to the State of New Jersey. The New Jersey Betting and Equal Treatment Act of 2012 (NJ BET Act), H.R. 3081, provides New Jersey with an exemption to the federal prohibition [in PASPA]. It allows state law in New Jersey to determine how sports betting will be regulated within the state. The Sports Gaming Opportunity Act of 2012, H.R. 3797, opens a window in which states can enact alaw providing for sports gambling within their state until January 1, 2016,after which the federal prohibition [in PASPA] against states allowing sportsgambling would go back into place."

The full letter can be found here.

Real Madrid one win away from 32nd La Liga title as both Ronaldo and Messi set Spanish league top goals scorers record to 43.

Real Madrid recover from champions league semi-final defeat and moved closer and close to La Liga Championship after 3-0 win over Sevilla to end Barcelona three years dominance.  Cristiano Ronaldo scored his 43rd league goal and 57th in this season. The goal was followed by a brace from Karim Benzema. 



Real Madrid vs Sevilla video highlights all goals

Real Madrid vs Sevilla 3:0 GOALS

Chelsea's Fernando Torres bang hat-trick against QPR but stay 6th in Premier league log

Fernando Torres successes in Champions league continues in Barclays Premier League with his first hat-trick for Chelsea in 6-1 victory over Queens Park Rangers and add premier league hat-tricks tally to 19. The hat-trick is his fourth in Premier league.



The £50m striker scores his first hat-trick since Sep 2009 and he promises many more. "My last hat-trick was a long time ago but hopefully it

Manchester city and Manchester United in crucial Manchester derby: The Premier league championship decider

Manchester United travel to Manchester City in
crucial Manchester derby is more likely to be the decider for Premier league
champion this season. Sir Alex Ferguson singled the tie as one of those unique ties “It means everything, ... “Everything. Going into work on Tuesday
morning will feel like the most important day of their lives. For both
sets of supporters“.



With three matches on

Minnesota Passes Bill to Allow Beer and Alcohol Sales at College Sporting Events

For those who are interested in the debate over whether to allow beer and alcohol sales at college sporting events, the State of Minnesota recently passed a bill that would allow for the sale of alcohol in suites for premium ticket holders and in a beer garden for the general public. According to the Minneapolis Star Tribune, the new bill is expected to bring the State of Minnesota $1.5-$2.0 Million in annual revenue.

If Minnesota Governor Mark Dayton signs this new bill into law, Minnesota will join Iowa, West Virginia and a growing number of other states in allowing beer and alcohol sales at their college sporting events. This is at the same time that many colleges around the country claim there is a need to crack down on undergraduate students' alcohol consumption.

In a 2010 law review article, David Rosenthal (a former student of mine) and I discuss the inconsistent messages that college athletics send about alcohol use. Does it make sense for the University of Minnesota to arrest underage students for drinking beer on Friday nights, and then to sell beer in its football stadium on Saturday afternoons?

Also, when colleges profit from the sale of beer at their sporting events, are they implicitly using their 'student-athletes' to help peddle the product? If so, can we truly call these college athletes amateurs?

Sports Venture Capital

I attended this week the first meeting of a group focused on sports venture capital. The attendees included representatives from the major sports leagues, venture capitalists and a number of initial stage companies with some technology or other services applicable to the sports industry.

MLB and NFL digital media execs gave a fascinating presentation on how those leagues use digital media to interact with and gain new fans, and what they look for when considering their own investments and other partnerships with sports technology companies.

The major sports leagues clearly see potential financial benefits from investing in initial stage technology companies, at least in part because social media is integral to their business models, as well as owning their own content. With the importance of social media for teams and leagues in heightening the fan experience (and increasing revenues), the proliferation of sports start-ups focused on technology and social media is likely to continue and teams and leagues are likely to continue to invest their own funds in these ventures. Technology companies like Apple and Google have been rumored to be bidders for sports media rights such as the English Premier League soccer.

The convergence of technology and sports, and start-up ventures, particularly social media companies, is a trend to watch.