EA Sports - Your Likeness is "In The Game"!
EA Sports is a video game maker that annually produces a game entitled NCAA Football. Ryan 
Hart was a college football player that played for Rutgers. EA Sports incorporated Mr. Hart's likeness into several versions of its video games, including matching his height, weight, home town, commonly worn arm band and helmet visor and other matters that pretty much matched Mr. Hart and his playing style at Rutgers. Mr. Hart filed a complaint seeking class action status for himself and other college football players similarly situated.
EA Sports filed a motion for summary judgment, alleging that EA's first amendment rights trumped any of the claims that Mr. Hart had, including New Jersey's recognition of a common law right to prevent unauthorized, commercial appropriation of names and likenesses.
The Federal District Court of New Jersey granted EA's motion and dismissed the complaint. In a 
long and detailed decision, the Court discussed several likeness cases including those involving Paris Hilton on a Hallmark card, Edgar Winters and his brother portrayed as giant worms in a comic book and the band No Doubt.
The Court relied on principles of copyright law and found that the defendant's use of the image was "transformative" and as such, was entitled to First Amendment protection that trumped any damages that the plaintiff had experienced. The Court conceded that EA licensed likenesses of pro football players and licensed colors and logos of college teams from colleges and paid for those, but refused to pay for likenesses of college players. They further conceded that this might seem "unfair" (You think?) but that the unfairness of the situation did not give rise to a different decision.
The Court found that a player of the video game could alter the player's likeness and playing attributes but that was not what was transformative. The transformative feature was EA's creation of the mechanism by which the virtual player could be altered.
So, EA Sports incorporates Mr. Hart's unaltered image in the game but provides a mechanism to alter it, so First Amendment rights triumph. "It's In The Game"
