Ed O'Bannon isn't the only person to wonder why his likeness was one of the featured aspects of a video game being sold for $59.99, yet he wasn't seeing any money off of it.
According to SNYRutgers.com, former Rutgers quarterback Ryan Hart can pursue a lawsuit against EA Sports after winning an appeal, which reversed the dismissal of his original lawsuit against the video game company for using his likeness without permission. Hart was Rutgers' starting quarterback in 2004 and 2005.
This issue has already become a serious one for the NCAA, with the O'Bannon lawsuit still pending, and now the Hart lawsuit will bring more attention to the issue if he decides to keep battling EA Sports.
The lawsuit centers around what anyone who has played one of EA Sports' college football games knows as a common fact: The players in the game don't have the names, but they have all the other likenesses of the real players. That anyone would rule otherwise is intellectually dishonest, and the 3rd Circuit Court of Appeals saw through it:
“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,” Judge Joseph Greenaway said, according to SNYRutgers.com. “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.”
Video game companies such as EA Sports argue that they can use likenesses under the First Amendment of free expression. A federal judge in 2011 ruled in EA Sports' favor on that basis, but the appeal overturned it.
It's hard to feel too bad for the NCAA or EA Sports in these cases. The NCAA and its member schools have already made billions off of unpaid players, and peddling video game rights to make a little bit more money off of them is greed at its finest. It has always been obvious that the avatars in the game were exact replicas of the players, just with their names omitted. Perhaps they never thought the players would fight back.