In a case of first impression, the Third Circuit in Hart v. Electronic Arts, Inc. considered whether the First Amendment protected the use of a collegiate football player’s likeness, represented in a digital avatar. The Third Circuit unanimously agreed that the transformative use test is the proper test to balance the player’s right of publicity with the video game producer’s freedom of expression. A majority of the court held that the video game manufacturer did not sufficiently transform the combination of the player’s physical likeness and biographical information embodied in the digital avatar. The dissent, however, believed the proper focus of the transformative use test requires an analysis of how the likeness is incorporated into—and transformed by—the work as a whole. Thus, the dissent believed that the other creative features of the game sufficiently transformed Hart’s likeness into something different than what it was before.
II. Facts and Procedural History
Plaintiff, Ryan Hart (Hart), is a former Rutgers University quarterback who played for the university from 2002–2005. Hart attended high school in Florida, stood 6’2”, weighed 197 pounds, and wore number thirteen for Rutgers University. In addition, Hart also typically wore a visor and an armband on his left wrist. As a condition for participating in football at Rutgers University, the National Collegiate Athletic Association (NCAA) required Hart to abide by its amateurism rules. These rules forbid a collegiate athlete from using “his or her athletics skill (directly or indirectly) for pay in any form in that sport” or accepting “any remuneration or permit[ting] the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind.”
Defendant, Electronic Arts (EA), is the video game manufacturer that annually develops and releases the popular video game franchise NCAA Football. The Collegiate Licensing Company granted EA a license for the right to use school names, team names, uniforms, logos, stadium fight songs, and other game elements. However, EA does not have a license to use the likeness and identity of the players. Much of the success of this franchise is owed to its focus on realism and detail. Thus, the 2004, 2005, and 2006 editions of NCAA Football contain a digital avatar of a Rutgers quarterback who wears number thirteen. Similar to Hart, this avatar also stands 6’2”, weighs 197 pounds, attended high school in Florida, and wears a helmet visor and an armband of his left wrist.
In October 2009 Hart filed a complaint in the Superior Court of New Jersey alleging that EA violated his right to publicity when EA used Hart’s likeness to create a digital avatar in NCAA Football 2004, 2005, and 2006. EA removed the action to the District Court of New Jersey, which dismissed all but the right-of-publicity claim. On November 12, 2012, EA filed a motion to dismiss or, in the alternative, for summary judgment pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56(c), respectively. For the purposes of this motion only, EA conceded that Hart had sufficiently stated a prima facie right of publicity claim under New Jersey law. Despite this concession, EA argued that the First Amendment barred Hart’s right-of-publicity claim because its NCAA Football game constituted a protected expressive work.
The District Court granted EA summary judgment, holding that the First Amendment protected EA’s expressive work. The District Court looked at two tests—the transformative use test and the Rogers test—and concluded that under either test, the First Amendment entitled EA to a defense to Hart’s right of publicity claim. In dicta, the court stated that the transformative use test “best encapsulates the type of nuanced analysis required to properly balance the competing right of publicity and First Amendment interest.” However, the court found that it was unnecessary for them to decide this question. This appeal followed.
III. Background on Prior Law
A. Freedom of Expression and the Right of Publicity
Hart v. Electronic Arts involved the balancing of two fundamental, and individual, rights: (1) the right of publicity and (2) freedom of expression. Freedom of expression is one the most fundamental rights in American society. This right does not only apply to political speech. Rather this protection has been found to apply to entertainment speech, including “motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works.” Further, it is beyond dispute that the First Amendment affords protection to video games as expressive speech. Despite its breadth, the First Amendment does not offer an absolute protection for all expressive speech; and the protection afforded to video games can be limited in situations where freedom of expression conflicts with another protected right.
One such protected right is the right of publicity. In New Jersey, the right of publicity is a property right in nature. Anyone who “appropriates to his own use or benefit the name or likeness of another is subject to liability.” New Jersey courts recognize that it is “unfair that one should be permitted to commercialize or exploit or capitalize upon another’s name, reputation or accomplishments merely because the owner’s accomplishments have been highly publicized.” The Third Circuit has held that New Jersey law recognizes that an individual’s “name, likeness, and endorsement carry value and an unauthorized use harms the person both by diluting the value of the name and depriving that individual of compensation.” Thus, in New Jersey, “[t]he right to exploit the value of that notoriety or fame belongs to the individual with whom it is associated.”
B. Balancing Freedom of Expression and Right of Publicity
Zacchini v. Scripps-Howard Broadcasting Co. is the only Supreme Court decision that analyzed the protections of the First Amendment in a right of publicity context. In Zacchini, Hugo Zacchini, an entertainer known for his “human cannonball” act, brought suit against an Ohio television news station that recorded and broadcast Zacchini’s entire “human cannonball” act without his permission. The Court ruled in favor of Zacchini and held that “[w]herever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent.” The Court further noted that the claim at hand involved “the appropriation of the very activity by which the entertainer acquired his reputation in the first place,” rather than an appropriation designed “to enhance the attractiveness of a commercial product.” Thus, this situation concerned the “strongest case for a ‘right of publicity.’” After Zacchini, three notable tests emerged that aimed to find where “the line in particular situations is to be drawn:”(1) the Rogers Test, (2) the predominant use test, and (3) the transformative use test.
1. Rogers Test
The Rogers Test was the first of the three tests; it developed in Rogers v. Grimaldi. In this case, an actress, Ginger Rogers, alleged that the producer of a movie titled “Ginger and Fred” violated her right to publicity. The court held that the right to publicity is violated only if “the use of a celebrity’s name in a movie title . . . was wholly unrelated to the movie or was simply a disguised commercial advertisement for the sale of goods or services.” The court then dismissed Rogers’s claim because they found that the title was “clearly related to the content of the movie and is not a disguised advertisement for the sale of goods and services.” As this case only concerned the title of the movie, the Rogers court made no mention as to whether this test would apply to a broader context than merely the title. However, in Facenda v. N.F.L. Films, Inc., the Third Circuit expressed doubt, albeit in dicta, over whether this test could apply beyond merely the title of a work.
2. Predominant Use Test
The Supreme Court of Missouri adopted the second notable test, the predominant use test, in Doe v. TCI Cablevision. In this case, a hockey player, Anthony “Tony” Twist brought a right-of-publicity claim against individuals for producing a comic book series featuring a character named Anthony “Tony Twist” Twistelli. In formulating its test, the court focused on whether the predominant use of the product was commercial or expressive. The court held that “[i]f a product is being sold that predominantly exploits the commercial value of an individual’s identity, that product should be held to violate the right of publicity and not be protected by the First Amendment.” However, if “the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.” The court ruled in favor of the plaintiff, finding that the reference to the plaintiff had “very little literary value compared to its commercial value.”
3. Transformative Use Test
The California Supreme Court first articulated the transformative use test in Comedy III Productions, Inc. v. Gary Saderup, Inc. In Comedy III, action was brought against an artist for the artist’s production and sale of t-shirts bearing a drawing of the Three Stooges. The court looked to copyright law and its “fair use defense” in an effort to effectively balance the interests at issue. Specifically, the court found that the first element of the fair use defense—whether and to what extent the new work is transformative—appropriately balanced the right of publicity with the freedom of expression. The central question in this new test is “whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction . . . is the very sum and substance of the work in question.” The transformative use test balances these two fundamental rights by analyzing whether the product containing the likeness is so transformed that it has become primarily the author’s own expression instead of the celebrity’s likeness.
The California Court of Appeals has applied the transformative use test specifically to claims involving video games in two cases—Kirby v. Sega of America, Inc.and No Doubt v. Activision. In Kirby, a musician alleged that a video game company misappropriated her likeness and signature phrases when creating a character for the game. The court found that although similarities existed, these similarities were “not the sum and substance of that character.” The court found that the differences between the character and the musician did in fact add additional meaning or message to the work. Therefore, her likeness was transformed in the game, and the game thus passed the transformative use test.
On the other hand, the court in No Doubt found that a video game company misappropriated the likeness of the band, No Doubt, in its Band Hero game. The court found that in contrast to the “‘fanciful, creative character’” in Kirby, the avatars in Band Hero were “immutable images of the real celebrity musicians.” However, the court held that this fact alone is not enough to find a misappropriation and looked to the context in which the avatars were represented in the game. The court held that despite the fact that other creative elements were present in the game, the avatars themselves were “exact depictions of No Doubt’s members doing exactly what they do as celebrities.” Further, these highly realistic depictions “encourage [fans] to purchase the game so as to perform as, or alongside, the members of No Doubt.” Therefore the video game company’s use of their likeness infringed the band’s right of publicity.
IV. Third Circuit Analysis
In finding that Hart’s interest in his right of publicity outweighed EA’s right to freedom of expression, the Hart majority considered the application of the three tests outlined above and the proper balance of these two fundamental rights.
A. Third Circuit Adopts Transformative Use Test
At the outset, the Hart majority rejected as inapplicable the argument that those who play organized sports are not significantly damaged by appropriations of their likeness. The majority found that the exact opposite is true regarding intercollegiate athletes since these athletes “are forbidden from capitalizing on their fame while in school.” The majority then turned to the analysis of the three balancing tests, beginning with the predominant use test.
The majority forcefully rejected the predominant use test as “subjective at best, arbitrary at worst.” The majority rejected Hart’s argument that the proper balance of these rights turned on “what value [EA is] adding to the First Amendment expressiveness [of NCAA Football] by appropriating the commercially valuable likeness?” Focusing on this question would force courts to “analyze select elements of a work to determine how much they contribute to the entire work’s expressiveness.” The majority believed this would be an improper analysis and call upon judges to act as “both impartial jurists and discerning art critics.”
The majority next turned to the Rogers test, which it rejected for fear that its adoption “would potentially immunize a broad swath of tortious activity.” The majority held that while the Rogers test may be useful in “trademark-like right of publicity cases,” it is “unfit for widespread application in cases that require a carefully calibrated balancing of two fundamental protections.” The use of the Rogers test would bar Hart from bringing a claim for misappropriation of his likeness as a football player precisely because his likeness was used for a game about football. The majority rejected this conclusion finding that “[i]t cannot be that the very activity by which Appellant achieved his renown now prevents him from protecting his hard-won celebrity.” Further, the majority rejected EA’s argument that the Rogers test could—and should—be applied more broadly to contexts outside of a work’s title. Relying on dicta from its previous decision in Facenda, the majority expressed doubt as to whether it was proper to even apply this test to the general contents of a work.
The majority adopted the transformative use test because it found that this test “provides courts with a flexible—yet uniformly applicable—analytical framework.” The majority found this test superior to the Rogers test because the transformative use test accounts for the fact that misappropriation can occur in market segments that are related to the celebrity. In addition, unlike the predominant use test, the transformative use test recognizes that the courts must begin by considering “the extent to which a work is the creator’s own expression.” By taking these considerations into account, the transformative use test “restricts right of publicity claims to a very narrow universe of expressive works.” Therefore, the task of the court was to determine whether Hart’s identity is sufficiently transformed in EA’s NCAA Football.
B. Application of Transformative Use Test
In applying the transformative use test, the majority held that Hart’s “identity” encompassed not only his physical appearance, but also his biographical information. In regards to the avatar’s appearance, the majority found that the avatar matched Hart’s hair color, hairstyle, and skin tone. Further, the avatar wore the same uniform accessories as Hart and accurately tracked Hart’s biographical information. However, this did not end the court’s inquiry. Following the lead of prior cases, such as No Doubt, the majority next analyzed the context in which the avatar exists. This inquiry provided no relief for EA, however, as the majority found that “the lack of transformative context is even more pronounced here than in No Doubt, where members of the band could perform and sing in outer space.” However, EA’s NCAA Football possessed an element that was not present in the No Doubt case: the user’s ability to alter the avatar’s appearance.
The majority held that this feature, standing alone, is not sufficient to transform EA’s use of Hart’s likeness into EA’s own expression. Accordingly, EA did not satisfy the transformative use test. Drawing on the analysis of No Doubt, the majority found that EA seeks to capitalize on the fan bases for the various teams and players present in the game. Thus, the fact that Hart’s likeness is the default position supports the conclusion that these realistic depictions are the “sum and substance” of the digital avatars, and not merely the “raw materials.” In addition, the majority held that the ability to make minor alterations to the avatar does not contribute “more than a merely trivial variation.” On the other hand, the major alterations to the avatar’s likeness do not transform Hart’s likeness; it simply ceases to be, and thus does not qualify as a “use” of the likeness for purposes of this inquiry.
As its last inquiry, the majority addressed EA’s argument—and the basis of the District Court’s decision—that NCAA Football contains many creative elements that are wholly divorced from Hart’s avatar, such that the video game as a whole should be considered transformative. The majority held that the analysis of “[w]holly unrelated elements” is an improper inquiry because, instantly, these elements have “no legal significance” in applying the transformative use test. Therefore, Hart’s likeness is not sufficiently transformed in NCAA Football 2004, 2005, and 2006, and the First Amendment provides no defense to EA on Hart’s right-of-publicity claim.
C. Dissent Finds EA’s Use Transformative
Although Judge Ambro agreed that the transformative use test strikes the proper balance between freedom of expression and the right of publicity, he disagreed with the majority’s interpretation and application of the test. The dissenting judge found fault in the majority’s narrow focus on the transformative nature of Hart’s individual likeness. He believed that the majority’s focus leads to a “medium-specific metric that provides less protection to video games than other expressive works.” The proper inquiry—in Judge Ambro’s view—should focus on “how that likeness is incorporated into and transformed by the work as a whole.”
By directing the inquiry to the work as a whole, Judge Ambro found NCAA Football digitally created Hart’s likeness—along with the rest of a college football team—and allowed users to direct and manipulate them in fictional football games. These games are not real; rather they are invented games that contain a “myriad [of] original graphics, videos, sound effects, and game scenarios.” Placing the digitally created avatar within this “imaginative and interactive world” sufficiently transformed Hart’s likeness. Thus, Judge Ambro believed that Hart’s likeness was merely one of the “raw materials” of NCAA Football, rather than the “very sum and substance of the work.” Therefore, Judge Ambro found that EA sufficiently transformed Hart’s likeness, such that it warranted First Amendment protection.
V. Implications of Hart
The implications of the majority’s decision in Hart have already manifested in the Ninth Circuit in In re NCAA Student-Athlete Name & Likeness Licensing Litigation, a case that involved almost identical underlying facts as Hart. Like the majority in Hart, the Ninth Circuit agreed that the transformative use test struck the proper balance between the right of publicity and freedom of expression.
In rejecting the Rogers test, the Ninth Circuit expressly adopted the Hart II majority’s reasoning that this test should not “be imported wholesale for right-of-publicity claims.” The Ninth Circuit found that the Rogers test was designed to protect consumers from the risk of consumer confusion—“a hallmark element of Lanham Act claims.” However, the right of publicity protects “the celebrity, not the consumer.” Instead, the Ninth Circuit adopted the transformative use test and, like the Hart majority, relied substantially on the decision in No Doubt to reach its conclusion. Finding that NCAA Football “realistically portrays college football players in the context of college football games,” the Ninth Circuit held that EA could not prevail as a matter of law based on the transformative use defense. Therefore, the Ninth Circuit affirmed the district court’s denial of EA’s motion to dismiss the complaint.
Within three months of the Hart decision, EA settled with the plaintiffs in In re NCAA Student-Athlete Name & Likeness Licensing Litigation, leaving the NCAA as the only remaining defendant. Subsequently, EA announced that it will not publish a college football game for at least one year as it evaluates the future of the franchise.
The decisions of the Third and Ninth Circuits illustrate that despite the “inexorable march of technological progress,” a line still must be drawn in the sand to protect these players’ right of publicity. Underlying both of these decisions is the fact that these athletes are forbidden “from capitalizing on their fame while in school” by the NCAA. Further, according to NCAA bylaws, if a college athlete’s name or picture is used to promote a commercial product—even without the athlete’s permission—the athlete is required to take steps to stop such activity. Failure to stop such activity strips the athletes of their eligibility to participate in intercollegiate athletics. This has created a system where EA cannot appropriate the athletes’ likeness without compensation, but if EA were to compensate the athletes—or if the athletes failed to stop EA from using their likeness regardless of whether they are compensated—they would no longer be eligible to participate in NCAA events.Thomas Helbig Temple University Beasley School of Law, JD Candidate 2015 Temple University Fox School of Business, MBA Candidate 2015
 717 F.3d 141 (3d Cir. 2013).
 Hart (Hart II), 717 F.3d at 145.
 Hart II, 717 F.3d at 153, 171.
 Id. at 168.
 Id. at 172–74 (Ambro, J., dissenting).
 Id. at 145 (majority opinion).
 Id. at 145, 147 n.8.
 Id. at 145.
 Id. (quoting 2011–2012 NCAA Division I Manual (2011) § 12.1.2 (2011), available at http://www.ncaapublications.com/p-4224-2011-2012-ncaa-division-i-manual.aspx).
 Id. (quoting 2011–2012 NCAA Division I Manual (2011), supra note 11, at § 184.108.40.206).
 Id. at 146.
 Id. at 146 n.5. The Collegiate Licensing Company is the NCAA’s licensing agent. Id
 Id. Notably, EA does receive a license for the likeness and identity rights of players for its video game franchises that depict professional athletes. Id.
 Id. at 146.
 Id. at 147 n.8.
 Hart v. Elec. Arts, Inc. (Hart I), 808 F. Supp. 2d 757, 761 (D.N.J. 2011).
 Hart II, 717 F.3d at 147.
 Hart I, 808 F. Supp. 2d at 766.
 Id. at 768.
 Id. at 794.
 U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech.”); see also, e.g., Procunier v. Martinez, 416 U.S. 396, 427 (1974) (noting that freedom of expression is “an integral part of the development of ideas and a sense of identity.”) (Marshall, J., concurring); Whitney v. California, 274 U.S. 357, 376 (1927) (stating that freedom of expression is “paramount in a democratic society, for “[i]t is the function of speech to free men from the bondage of irrational fears.”) (Brandeis, J., concurring).
 Tacynec v. City of Phila., 687 F.2d 793, 796 (3d Cir. 1982) (quoting Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1983)).
 See Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011) (stating that “video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium”).
 See, e.g., No Doubt v. Activision, Publ’g, Inc., 192 Cal. App. 4th 1018, 1035 (Cal. Ct. App. 2011) (finding that video game manufacturer violated musical groups’ right of publicity); Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47, 58–59 (Cal. Ct. App. 2006) (finding that video game depiction can form basis for right of publicity claim, but that plaintiffs’ had not satisfied the transformative use test).
 Restatement (Second) of Torts § 652C cmt. a (1977).
 Id. § 652C.
 Palmer v. Schonhorn Enter., Inc., 232 A.2d 458, 462 (N.J. Super. Ct. Ch. Div. 1967).
 McFarland v. Miller, 14 F.3d 912, 919 (3d Cir. 1994).
 Id. at 923.
 433 U.S. 562 (1977).
 Zacchini, 433 U.S. at 563–66.
 Id. at 574–75.
 Id. at 576.
 Id. at 574.
 The Rogers Test is also sometimes referred to as the Relatedness Test or the Restatement Test. Hart II, 717 F.3d 141, 155 n.17 (3d Cir. 2013).
 875 F.2d 994 (2d Cir. 1989).
 Rogers, 875 F.2d at 996.
 Id. at 1004.
 Id. at 1004–05.
 542 F.3d 1007 (3d Cir. 2008).
 Facenda, 542 F.3d at 1018.
 110 S.W.3d 363 (Mo. 2003).
 Doe, 110 S.W.3d at 365.
 Id. at 374 (quoting Mark S. Lee, Agents of Chaos: Judicial Confusion in Defining the Right of Publicity-Free Speech Interface, 23 Loy. L.A. Ent. L. Rev. 471, 500 (2003)).
 21 P.3d 797 (Cal. 2001).
 Comedy III, 21 P.3d at 801.
 Id. at 807–08.
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
 Comedy III, 21 P.3d at 808.
 Id. at 809.
 50 Cal. Rptr. 3d 607 (Cal. Ct. App. 2006).
 122 Cal. Rptr. 3d 397 (Cal. Ct. App. 2011).
 Kirby, 50 Cal. Rptr. 3d at 617.
 Id. at 616–17.
 No Doubt, 122 Cal. Rptr. 3d at 411–12.
 Id. at 410.
 Id. at 411.
 Id. at 411–12.
 Hart II, 717 F.3d 141, 153 (3d Cir. 2013).
 Id. at 153 n.14; see also C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 824 (8th Cir. 2007) (holding First Amendment protections outweighed those afforded by the right of publicity because “players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements”); Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 974 (10th Cir. 1996) (finding that “the additional inducement for achievement produced by publicity rights are often inconsequential because most celebrities with valuable commercial identities are already handsomely compensated”).
 Hart II, 717 F.3d at 153 n.14. The majority also noted that, according to NCAA estimates, only 1.6% of NCAA football athletes will be drafted by a National Football League team. Id.
 Id. at 153.
 Id. at 154.
 Id. at 155.
 Id. at 157.
 Id. at 158.
 Id. at 155.
 Id. at 157.
 Id. at 163.
 Id. at 165.
 Id. at 166.
 Id. See supra Part II for a discussion of the similarities between Hart and the avatar in EA’s NCAA Football.
 Id. at 166.
 Id. at 166. The court found that 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. This is not transformative.”Id.
 Id. at 167. The court states here that “[i]nteractivity cannot be an end onto itself.” Id.
 Id. at 168.
 Id. (quoting Winter v. D.C. Comics, 69 P.3d 473, 478–79 (Cal. 2003)).
 Id. at 168–69.
 Id. at 169.
 Id. at 170.
 Id. at 171 (Ambro, J., dissenting). Judge Ambro rejected the majority’s reliance on the Kirby and No Doubt decisions. Id. at 172 n.4. Judge Ambro did not find these cases instructive due to the fact that the Supreme Court of California did not decide these cases. Id. Further, Judge Ambro believed that No Doubt was wrongly decided based on prior California precedent. Id.
 Id. at 172.
 Id. at 174.
 Id. at 173.
 Id. at 174–75.
 Id. at 175.
 Id. at 176.
 724 F.3d 1268 (9th Cir. 2013).
 This case also involved a digital avatar in EA’s NCAA Football video game. NCAA Student-Athlete Likeness Litig., 724 F.3d at 1271. The avatar at issue had the same height, weight, build, skin tone, hair color, and number as Plaintiff, Sam Keller. Id. at 1272. The avatar played for Arizona State University, as Sam Keller did. Id. In 2008 when Sam Keller transferred to the University of Nebraska, a digital avatar with these same characteristics was present on the University of Nebraska’s team. Id.
 Id. at 1271.
 Id. at 1280.
 Id. at 1281.
 Id. at 1276.
 Id. at 1279.
 Id. at 1284.
 Steve Berkowitz, EA Deal Leaves NCAA Alone in Legal Fight, USA Today, Sep. 27, 2013, at 1C.
 Hart II, 717 F.3d 141, 166 (3d Cir. 2013).
 Id. at 153 n.14.
 Id. at 145 n.2.