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EA defeats ex-Rutgers QB over video game image

Electronic Arts Inc. on Friday won the dismissal of a lawsuit by a former star Rutgers University quarterback accusing it of using his image in its NCAA Football video game without permission.

U.S. District Judge Freda Wolfson in Trenton, New Jersey, said Electronic Arts' right to free expression under the First Amendment outweighs the plaintiff Ryan Hart's right to control how his name and likeness are used. Mr. Hart played for Rutgers from 2002 to 2005.

Ms. Wolfson's decision appears at odds with a February 2010 ruling by a California federal judge that allowed a similar case by former Arizona State University and University of Nebraska quarterback Samuel Keller to proceed. Electronic Arts is appealing that ruling.

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While many college athletes receive scholarships, the National Collegiate Athletic Association has strict rules prohibiting them from sharing in the many millions of dollars that their schools receive from television and licensing deals.

In her 67-page ruling, Ms. Wolfson said the virtual quarterback in the NCAA Football game "bears resemblance to Hart and was designed with Hart's physical attributes, sports statistics, and biographical information in mind."

But she said a user could transform that virtual player by altering physical characteristics such as height, weight, hair, body and complexion, or by controlling his throwing distance and accuracy, and even changing his team.

"The image serves as an art-imitating-life starting point for the game playing experience," and can be transformed to a degree where Hart's claims should be rejected, she wrote.

Mr. Hart's lawyer Tim McIlwain called the decision "a major disappointment." He said his client now works in the life insurance industry and is appealing.

"Electronic Arts engaged in the absolute taking of my client's persona," McIlwain said in an interview. "Millions of dollars are being made, and he's not getting his part of that pot. How is this allowed to happen?"

Elizabeth McNamara, a lawyer for Electronic Arts, said the Redwood City, California-based company is pleased with the decision, which "validates Electronic Arts' rights to create and publish its expressive works."

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The lawsuit had sought class-action status.

Ms. Wolfson said her ruling took into account "the plight of college players," who are being barred under NCAA bylaws from entering licensing and other commercial agreements during their playing years.

In the Keller case, the judge found that the plaintiff had in the NCAA Football game been "represented as what he was," and that his depiction was far from the "transmogrification" that might entitle Electronic Arts to protection.

Electronic Arts reported net revenue of $3.59-billion in its fiscal year ended March 31. On Thursday, retail research firm NPD said the company's "NCAA Football 12" was the second best-selling video game in the United States in August.

In afternoon trading, Electronic Arts shares fell 90 cents, or 4.1 per cent, to $21.18 on the Nasdaq. Major U.S. stock indexes were down about 3 per cent.

The case is Hart v. Electronic Arts Inc. et al, U.S. District Court, District of New Jersey, No. 09-05990.

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