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Richard J. Lambert was named by Best Lawyers® as a 2021 Corporate Law “Lawyer of the Year.”

Best Lawyers® is the oldest and most respected peer-review publication in the legal profession. Only one lawyer in each practice area in a given community is honored as “Lawyer of the Year.”

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Former New Jersey football player wins appeal

New Jersey businesses may be tempted to use an athlete’s or other celebrity’s image in order to promote their business or product. It is tempting because so many people may be drawn to something that a particular famous person is endorsing. However, businesses should be careful to only use a person’s likeness or image if they have that person’s permission, or else commercial litigation could ensue.

In a recent case, a former New Jersey football quarterback sued a video game company for using his image without his permission. In this case, former Rutgers University quarterback Ryan Hart sued videogame giant Electronic Arts. While the suit was filed in 2009, Hart recently won an important victory at the U.S. 3rd Circuit Court of Appeals.

In this case, Hart argued that EA used his image in its game “NCAA Football.” EA, on the other hand, claimed it did nothing more than exercise its First Amendment rights to expression in creating the game. In 2011, a district court ruled for EA and agreed that the game was protected by the First Amendment.

However, recently the Court of Appeals overturned the district court’s ruling and sided with Hart. The Court argued that since the game did not alter Hart’s appearance or the stadium in which they played and since the avatar did exactly what Hart did at Rutgers that the game was using his likeness.

While this is a victory for Hart, EA has vowed to seek further review by the courts — namely the Supreme Court — and therefore this litigation could be far from over.

New Jersey businesses should understand that there is a fine line between First Amendment protections and intellectual property rights. These businesses should know their legal obligations and rights before they use a celebrity’s image.

Source: The Star-Ledger, “Former Rutgers QB Ryan Hart gets favorable call on lawsuit against EA Sports,” Ted Sherman, May 22, 2013

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