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TitleHart v. Electronic Arts, Inc
LanguageEnglish
File Size651.0 KB
Total Pages222
Table of Contents
                            A. Factual Background
	B. Procedural Background
	I. The Lower Courts Are In Disarray Concerning the First Amendment Limits on Right-of-Publicity Claims.
		A. The Third and Ninth Circuits’  Transformative-Use Test Protects an Expressive Work Only if the Plaintiff’s Likeness Is “Transformed.”
		B. The Constitutional Test Adopted Below Is Inconsistent With Tests Applied By Other Courts.
			1. Four Circuits and Two State Supreme Courts Have Held that the First Amendment Protects Non-Commercial Speech Depicting Well-Known People, Even if the Depiction Is Not “Transformed.”
			2. Other Courts Engage in Case-Specific Balancing.
	II. This Case Presents an Ideal Vehicle For Addressing the Constitutional Question.
	III. The Third Circuit’s Holding Is Wrong and Conflicts with This Court’s First Amendment Jurisprudence.
		A. The Adopted Transformative-Use Test Does Not Adequately Respect First Amendment Rights.
		B. The Transformative-Use Test Will Chill Protected Speech Because It Is Overbroad and Unpredictable.
		C. Case-Specific Balancing Is Equally Problematic.
		D. The Rogers Test Confines the Right of Publicity to Circumstances Where Its Application Does Not Violate the First Amendment.
                        
Document Text Contents
Page 1

No. ___

IN THE
Supreme Court of the United States

________

ELECTRONIC ARTS INC.,
Petitioner,

v.
RYAN HART, INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED,
Respondent.

________


On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Third Circuit

________

PETITION FOR A WRIT OF CERTIORARI
________


Alonzo Wickers IV
DAVIS WRIGHT TREMAINE LLP
865 S. Figueroa Street
Suite 2400
Los Angeles, CA 90017
(213) 633-6800

Elizabeth A. McNamara
DAVIS WRIGHT TREMAINE LLP
1633 Broadway, 27th Floor
New York, NY 10019
(212) 489-8230

September 23, 2013

Paul M. Smith
Counsel of Record
Kenneth L. Doroshow
Katherine A. Fallow
Matthew E. Price
Mark P. Gaber
JENNER & BLOCK LLP
1099 New York Ave. NW
Suite 900
Washington, DC 20001
(202) 639-6000
[email protected]

Page 2

i



QUESTION PRESENTED

Whether the First Amendment protects a speaker
against a state-law right-of-publicity claim that
challenges the realistic use of a person’s name or
likeness in an expressive work.

Page 111

64a

When addressing Hart’s claim, their analysis proceeds
by analyzing, on a step-by-step basis, the digital avatar
based on Hart, the context in which that avatar is set in
NCAA Football, and the users’ ability to alter the
avatar’s appearance, concluding at each step that
Hart’s likeness is not sufficiently changed to qualify as
“transformative.” In the last instance, my colleagues
reject as immaterial the myriad other creative
elements of the video game on the ground that
“[d]ecisions applying the Transformative Use Test
invariably look to how the celebrity’s identity is used,”
and that “[w]holly unrelated elements do not bear on
this inquiry.” [Majority Op. at 169 (emphasis in
original).] But by cabining their inquest to Hart’s
likeness alone, their approach is at odds with California
Supreme Court decisions on the Transformative Use
Test.4

The infirmity of this approach is highlighted by
ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th
Cir. 2003), in which the Sixth Circuit Court of Appeals
concluded that an artist’s use of several photographs of


4
The majority opinion relies heavily on two lower court decisions

in California considering the right of publicity in the video game
context, No Doubt v. Activision Publishing, Inc., 192 Cal.App.4th
1018, 122 Cal.Rptr.3d 397 (2011), and Kirby v. Sega of America,
Inc., 144 Cal.App.4th 47, 50 Cal.Rptr.3d 607 (2006). I do not
consider these cases particularly instructive, as they were not
decided by the architect of the Transformative Use Test, the
Supreme Court of California. Thus, I do not attempt to explain or
distinguish their holdings except to note that I believe No Doubt,
which focused on individual depictions rather than the work in its
entirety, was wrongly decided in light of the prior precedent in
Comedy III and Winter.

Page 112

65a

Tiger Woods in a commemorative collage was
“transformative,” and thus shielded from Woods’
right-of-publicity suit. My colleagues do not—and, in
my view, cannot—explain how the photographic images
of Woods were transformed if they limit their analysis
to “how the celebrity’s identity is used.” [Majority Op.
at 169 (emphasis in original).] Instead, their discussion
of ETW recognizes that the Sixth Circuit held that the
artist’s use qualified for First Amendment protection
under the Transformative Use Test because “the
collage ‘contain[ed] significant transformative
elements,’” and the combination of images
“‘describe[d], in artistic form, a historic event in sports
history[—the 1997 Masters golf tournament—]and ...
convey[ed] a message about the significance of Woods’
achievement in that event.’” [Majority Op. at 161 (first
alteration in original) (emphasis added) (quoting ETW,
332 F.3d at 938; citing Comedy III, 106 Cal.Rptr.2d 126,
21 P.3d at 809).] No doubt the use at issue
here—creating digital avatars of football teams and
placing them in an interactive medium designed for
user interaction and manipulation—is significantly
more “transformative” than the use in ETW, which
simply combined several photographs into a
photomontage.

To me, a narrow focus on an individual’s likeness,
rather than how that likeness is incorporated into and
transformed by the work as a whole, is a flawed
formulation of the transformative inquiry. The
whole—the aggregate of many parts (including, here,
many individuals)—is the better baseline for that
inquiry.

Page 221

174a



Appendix D


UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

__________

No. 11-3750
__________

RYAN HART, individually and on
Behalf of all others similarly situated

v.

ELECTRONIC ARTS, INC.,
A Delaware Corporation;

DOES 1-50

Ryan Hart, Appellant
__________

APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT

OF NEW JERSEY
(D.C. Civ. Action Number 3:09-cv-05990)

District Judge: Honorable Freda L. Wolfson
__________

Present: McKEE, Chief Judge, SLOVITER,
SCIRICA, RENDELL, AMBRO, FUENTES,
SMITH, FISHER, CHAGARES, JORDAN,

GREENAWAY, JR., VANASKIE, SHWARTZ,
and TASHIMA, Circuit Judges.

__________

SUR PETITION FOR REHEARING
WITH SUGGESTION FOR REHEARING EN

BANC

Page 222

175a



__________

The petition for rehearing filed by Appellee and
briefs in support by amici having been submited to all
judges who participated in the decision of this court,
and to all other available circuit judges in active
service, and a majority of the judges who concurred in
the decision not having asked for rehearing, and a
majority of the circuit judges of the circuit in regular
active service not having voted for rehearing by the
court en banc, the petition for rehearing by the panel
and the Court en banc is hereby DENIED. Judges
Ambro and Fuentes voted for rehearing.

BY THE COURT:



/s/ Joseph A. Greenaway, Jr.
Circuit Judge


Dated: June 25, 2013

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