If EA loses its case against a college athlete, will you lose too?

In recent years, EA has gotten into some legal trouble with NCAA athletes thanks to the way its games handle their likenesses -- and in a new feature, Rutgers law professor Greg Lastowka argues that EA's in the right. "Ryan Hart is one of the most famous quarterbacks in the recent history of Rutgers football," writes Lastowka. "He led the 2005 Scarlet Knights to the Insight Bowl, the first bowl game that Rutgers had played in decades." But it seems that Hart has a problem with EA, which signs licensing deals with the NCAA's licensing company for its NCAA Football series -- which duplicates players in everything but name, putting anonymous clones of real-world athletes in the games, which players are then free to name accurately. Is the nameless athlete in the game with Hart's precise stats that EA programmed into the game really Hart? Hart thinks so -- and he sued EA. The case was dismissed, but Hart's appealing. "Hart's legal team claims that EA has infringed Hart's 'right of publicity'," writes Lastowka. "It's important to see, at the outset, that Hart has a good reason to be bothered by the money being made off his identity," he writes. "Many people, myself included, think that Hart has been exploited. Undergraduate athletes are too often used and abused as free labor to build multi-million dollar entertainment and licensing empires." However, Lastowka argues that overreach has created a system of rights of publicity that harm creative works. "There is no commonly accepted theory that justifies the right of publicity. And for every question you ask about the right, you can find fifty different answers," writes Lastowka. "In theory, publicity rights are supposed to be balanced by courts with protections for free speech. But... this balancing too often favors celebrity rights over speech rights," he argues. "In a world of licensed identities, only those game developers capable of paying licensing fees would be able to make games that refer to actual people of historical interest." The full feature, which explores the issue in much more depth, is live now on Gamasutra.