SUBMISSIONS
amend at the state court level, the Court will grant Plaintiff's request because the facts alleged in Plaintiff's Declaration and in his opposition appear to state a right of publicity claim under New Jersey law. Should Plaintiff decide to file a Second Amended Complaint in order to include the proposed facts and any additional ones he
chooses to assert, the Court will then consider any subsequent motion by Defendant based on a First Amendment defense.
Plaintiff's proposed allegations, found in his declaration and opposition, are of the sort recognized by New Jersey courts as stating a prima facie right of publicity claim. Courts have explained the prima facie case for infringement of the right of publicity as a two-fold requirement, including allegations of validity and infringement. See id. (citing McCarthy, The Rights of Publicity and Privacy § 3.1[B]). Validity relates to whether the plaintiff "owns an enforceable right in the identity or persona," the likeness of which he alleges was misappropriated.Id. Infringement relates to whether the defendant "without permission, . . . used some aspect of identity or persona in such a way that [plaintiff] is identifiable from defendant[s'] use," and that the "defendant['s] use is likely to cause damage to the commercial value of that persona." Id.
Another formulation of the prima facie case is: "1) the defendant appropriated the plaintiff's likeness, 2) without the plaintiff's consent, 3) for the defendant's use or benefit, and 4) damage." Jeffries v. Whitney E. Houston Academy P.T., Docket No. L-1389-07, 2009 WL 2136174, *3 (App. Div. Jul. 20, 2009) (citing Faber v. Condecor, Inc., 195 N.J.Super. 81, 86-90, 477 A.2d 1289 (App.Div.), certif. denied, 99 N.J. 178, 491 A.2d 684 (1984)). While this formulation contains four elements, the test described in Prima collapses the same elements into only two parts.
Here, in terms of validity, Plaintiff proposes to assert that he played for Rutgers as a quarterback during the 2002 — 2005 college seasons. This assertion could sufficiently allege that he has a persona as a Rutgers quarterback. As to likeness, Plaintiff proposes to aver that the video games depict a "virtual" player in screen shots that replicate photos taken of Plaintiff while playing at Rutgers. Plaintiff further proposes to assert that the virtual player hails from the same home town, has the same height and weight as he did while a quarterback, wears the same jersey number, wrist band, and helmet visor. In addition, he asserts that the 2006 game used the same speed and agility rating, passing accuracy, and arm strength, mirroring statistics from Plaintiff's actual game footage. These sorts of allegations could provide enough factual matter, if taken as true as they must be on a motion to dismiss, to suggest that the virtual player in the video games depicts Plaintiff's likeness. Consistent with Twombly's pleading standard, these facts could "raise a reasonable expectation that discovery will reveal evidence of th[is] element" of Plaintiff's right of publicity claim. 550 U.S. at 556.
Regarding the allegations of infringement, Plaintiff's Declaration and statements in his opposition brief allege that, without Plaintiff's permission, Defendant used Plaintiff's likeness in such a way that Plaintiff is identifiable, and that Defendant's use caused damage to the commercial value of Plaintiff's persona. As noted, he alleges that the virtual player has the same physical characteristics, uniform, and game-related statistics as he did while playing at Rutgers, such as Plaintiff's speed and agility rating. These assertions are similar to those in a Ninth Circuit case referenced by a New Jersey treatise. That case, Motschenbacher v. R. J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) cited in Brent A. Olson, et al., The Right of Publicity in New Jersey, 49 N.J. Prac., Business Law Deskbook § 16:4 (2009-2010 ed.), involved allegations that the Defendant R.J. Reynolds Tobacco Co., owner of the "Winston" name, televised a commercial
utilizing a color photograph of a professional racing driver's car
in which the driver's facial features were not visible. Furthermore, in producing the commercial, defendants slightly altered the photograph by changing the numbers on plaintiff's car from "11" to "71," attaching a wing-like spoiler to plaintiff's car, and by adding the word "Winston" to that spoiler. All other familiar characteristics of the car were retained.
Id. at 826 (emphasis added). Ruling in favor of the plaintiff in that case, the Ninth Circuit reasoned that the "distinctive decorations appearing on the car . . . were not only peculiar to the
plaintiff's car, but they caused some persons to think the car in question was plaintiff's and to infer that the person driving the car was the plaintiff."
Id. at 827. Similarly, here, the proposed allegations aver that virtual player's physical attributes and statistics are peculiar to Plaintiff and invoke his likeness, even if his exact facial features are not replicated. Finally, in terms of economic damage, Plaintiff's proposed allegations aver that Defendant's video game sales, for all of its sports-related games, including
NCAA Football, generate over 4 billion dollars in revenue for Defendant. The implication of Plaintiff's allegations is that he would now be entitled to sell his own likeness and recover a portion of those monies for himself.
Altogether, Plaintiff's proposed allegations suggest that he may be able to state a right to publicity claim. Accord Palmer v. Schonhorn Enterprises, Inc., 96 N.J.Super. 72 (Ch. Div. 1967) (ruling in favor of professional golf athletes whose name and playing profiles were included in board game); Presley's Estate v. Russen, 513 F.Supp. 1339 (D.N.J. 1981) (granting preliminary injunction enjoining Elvis impersonator from using Elvis' likeness in products or merchandise connected with the impersonator's stage show). This includes Plaintiff's allegations regarding the use of his video footage in promotional materials related to a version of the video game. Accord Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 909-910 (D.N.J. 1986) (holding that use of photograph of former Vietnam veteran in letter advertising non-fiction Vietnam book violated veteran's right to publicity).
Defendant's key challenge to Plaintiff's proposed allegations is that they fail to demonstrate that Defendant's use of Plaintiff's likeness was for a commercial purpose. Defendant is correct that, under New Jersey law,
defendant[s] would be liable for the tort of misappropriation of likeness only if defendant's use of plaintiff's likeness was for a predominantly commercial purpose,
i.e., if defendant was seeking to
capitalize on defendant's likeness for purposes other than the dissemination of news or information.
Tellado,
643 F. Supp. at 909-10. Thus, to determine if granting leave to amend would be futile, the Court considers Defendant's argument.
In support of its argument, Defendant relies upon Castro v. NYT Television, supra. Castro involved an appropriation of likeness claim asserted by plaintiff emergency-room patients who had been videotaped after executing a consent form. The plaintiffs claimed that the videotapers misrepresented that they were part of the hospital when, in fact, they were media employees seeking footage for a reality television show. Because the plaintiffs did nothing more than assert that "[d]efendants appropriated plaintiffs' likenesses, images and/or names for commercial profit and advantage," the Castro Court dismissed their claim for failure to allege that the videotape footage had been used for trade purposes. 370 N.J.Super. at 289. In reaching its conclusion, theCastro Court reasoned that "it is irrelevant whether a videotape is broadcast in connection with a television story about important public events or a subject that provides only entertainment and amusement. . . ." Id.
Defendant focuses its argument on Castro's broad language; however, courts interpreting Castro have limited its holding to media defendants. For example, the court in Liebholz v. Harriri, Civil Action No. 05-5148, 2006 WL 2023186 (D.N.J. Jul. 12, 2006), held that a biotechnology corporate defendant who fraudulently displayed on its website that a scientist was affiliated with the company could not rely on Castro to shield it from liability. That court reasoned:
Leibholz cannot rely on cases like
Castro . . . because those were cases in which the mere use of a person's likeness by a media defendant, without use of the likeness to encourage more viewership or sell more magazines, was held to be incidental and therefore not actionable. Not every use of one's image or likeness by a magazine is considered a "commercial use," since otherwise almost any
publication of a name or likeness would be misappropriation. Use of names and likenesses by non-media parties are different.
Id. at *4. Indeed, language in
Castro suggests this interpretation is correct in that the decision speaks of "enlightening the public," and that there is no distinction between "
news for information" and "
news for entertainment,"
370 N.J.Super. at 298 (emphasis added). Other decisions applying New Jersey law, such as
Tellado, contain similar news-related language.
643 F.Supp. at 914 (discussing
Zacchini v. Scripps-Howard Broadcasting Co.,
433 U.S. 562 (1977)).
That said, case law and commentaries discussing New Jersey law make clear that the touchstone of the commercial purpose requirement is whether the publication uses the plaintiff's likeness "for the purpose of capitalizing upon the name by using it in connection with a commercial project. . . ." Palmer, 96 N.J.Super. at 79; see Castro, 370 N.J. Super. at 297 ("defendant[s] would be liable for the tort of misappropriation of likeness only . . . if defendant was seeking to capitalize on defendant's likeness) (quoting Tellado, 643 F.Supp. at 909-10); 49 N.J. Prac., Bus. Law Deskbook § 16:4 (2009-2010 ed.) ("In New Jersey, an advantage or benefit accruing to the defendant is a sine qua non for a successful claim: mere publicity is not actionable; it must be shown that defendant acted with a commercial purpose or otherwise sought some benefit from revealing information about plaintiffs.) (emphasis in original) (internal quotation marks omitted). As the Restatement puts it, "[u]ntil the value of the name has in some way been appropriated, there is no tort." Restatement (Second) of Torts, § 652C c (emphasis added).
Thus, in my view, to show that the commercial purpose requirement is met here, Plaintiff would have to allege that Defendant used his likeness to increase its sales of the video games, for example. Plaintiff proposes to assert that "[w]ith its NCAA Football video game, Defendant . . . allows the public to simulate the college football playing experience by stepping into the shoes of Rutgers' QB Ryan Hart, and other college football players, where fans can mimic Plaintiff's style and movements and play against Plaintiff's actual opponents." Pl. Opp. Br. at 3 (emphasis added). This allegation, though inartfully plead, may evoke the notion that Defendant has utilized Plaintiff's image in order to increase sales of its video game. Accord Presley's Estate, 513 F.Supp. at 1360 (concluding Elvis impersonator's use of Elvis' likeness in his stage show was primarily to appropriate the commercial value of Elvis' likeness even though the impersonator's show had some independent, creative, entertainment value).
In sum, "[w]hile the Court could ignore [Plaintiff's Declaration] and test the sufficiency of the allegations in the [Amended Complaint] without reference to [the Declaration or briefs]," I find it more efficient and in the interest of justice to "grant Plaintiff leave to amend the Complaint . . . and to permit Defendants to refile their dismissal motions following Plaintiff['s] amendment." Liberty and Prosperity 1776, Inc. v. Corzine, Civil Action No. 08-2642, 2009 WL 537049, *7 (D.N.J. Mar. 3, 2009) ("the court should freely give leave [to amend the complaint] when justice so requires") (quoting Fed.R.Civ.P. 15(a)(2)). The Court, thus, grants Defendant's motion to dismiss without prejudice, so to afford Plaintiff the opportunity to file a Second Amended Complaint. In so ruling, the Court is not holding that Plaintiff's proposed allegations are sufficient as a matter of law. Rather, the Court merely concludes that the sort of allegations Plaintiff's proposes suggest that an amendment may not be futile.
With regard to Defendant's First Amendment defense, applicability of the defense depends upon whether the video game is considered commercial speech or an artistic work. See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1018 (3d Cir. 2008) (discussing first amendment defense in trademark context). Indeed, the Third Circuit noted in Facenda that sports-related video games may contain both noncommercial and commercial elements. Id. at 1017. Accord Scott Jon Shagin, Celebrity Rights in New Jersey, 231 N.J. Lawyer 15, 17 (2004) ("The First Amendment defense analysis becomes especially thorny in circumstances where the use of the celebrity's identity may serve dual purposes: as expressive speech designed to entertain or newsworthy speech designed to inform, but also as speech that is designed to help sell products or services.") Typically, this sort of defense is heard on a motion for summary judgment in light of the intricate facts that the Court must consider in divining the nature of the speech.See e.g., id. at 1011; see In re Orthopedic Bone Screw Products Liability Litigation, 193 F.3d 781, 793-94 (3d Cir. 1999) (explaining a number of key facts that must be assessed in ruling on First Amendment claim involving potentially commercial speech). For this reason, the Court will not consider Defendant's First Amendment defense at this juncture. If Plaintiff chooses to file a Second Amended Complaint, the Court will consider the First Amendment defense by way of an appropriate motion brought by Defendant.
Defendant attempts to rely on Facenda for the proposition that a video game is an expressive work entitled to First Amendment protection; however, the speech at issue in Facenda was a thirty-minute video program describing a video game, which the Third Circuit held (on summary judgment) to be in the nature of an infomercial. Thus, any language suggesting that a video game is, by its nature, an expressive work is dicta. That said, the Court questions whether Plaintiff will be able withstand the First Amendment defense at a later stage in the proceedings.
Defendant cites Castro for the proposition that the First Amendment defense may be decided on a motion to dismiss. Castro, however, did not address the First Amendment defense but held that the plaintiff's did not state a prima facie case for misappropriation because they failed to allege a commercial purpose. 370 N.J.Super. at 298-99. The Court is aware of Castro's comment that "a member of the general public who is subject to videotaping for a television program cannot reasonably expect that he or she will receive payment from the producer of the show. In fact, a substantial First Amendment issue would be raised if a court were to find a right of compensation in such circumstances." Id. at 300. In the context of the entire opinion, however, that phrase does not indicate that the Castro Court ruled on First Amendment grounds.
B. Remaining Claims
1. New Jersey Consumer Fraud Act
Defendant is correct that Plaintiff's NJCFA claim must be dismissed because he is not a "consumer" and, therefore, does not have standing to bring that claim. In response, Plaintiff argues that this Court should follow a line of cases holding that competitors have standing to sue under the NJCFA. While Plaintiff is correct that some cases have held that competitors have standing under the statute, those cases refer to direct competitors of the defendant, i.e., "competitors in a commercial sense." General Development Corp. v. Binstein, 743 F.Supp. 1115, 1131 (D.N.J. 1990); see Feiler v. New Jersey Dental Ass'n, 191 N.J.Super. 426, 431 (Ch. Div. 1983) ("A practicing New Jersey dentist has standing to complain that another dentist gains an unfair competitive advantage over him by fraudulent billing practices that enable him to promise and deliver cost savings to patients that are unavailable to patients of an honest practitioner.").
Plaintiff is not a direct, commercial competitor of Defendant; he does not produce and sell video games. See 800-JR Cigar, Inc. v. GoTo.com, Inc., 437 F.Supp.2d 273, 296 (D.N.J. 2006) ("As a cigar retailer, JR cannot be considered a commercial competitor of GoTo's search engine."). Moreover, he has not pointed to any cases in which a non-direct competitor was held to have standing, and the Court sees no reason to presume that the New Jersey Supreme Court would extend the NJCFA to such plaintiffs. Accord IDT Telecom, Inc. v. CVT Prepaid Solutions, Inc., Civil Action No. 07-1076, 2009 WL 5205968, *6 (D.N.J. Dec. 28, 2009) (declining to extend NJCFA to cover complaint brought by phone card distributor against phone card provider); Conte Bros. Auto., Inc. v. Quaker State-Slick 50, 992 F.Supp. 709, 716 (D.N.J. 1998) aff'd on other grounds 165 F.3d 221 (3d Cir. 1998) (noting that "commercial resellers such as plaintiffs do not qualify as `consumers" and declining "plaintiffs' invitation to construe the [NJCFA] to permit non-consumers
such as plaintiffs to assert claims thereunder."). Therefore, the Court concludes that Plaintiff is not a consumer under the NJCFA and dismisses his NJCFA claim with prejudice.
2. Unjust Enrichment
Defendant argues that Plaintiff may not proceed under the unjust enrichment theory because he has no direct relationship with Defendant, upon which basis he could assert that he reasonably expected to be compensated for Defendant's use of his likeness. While conceding that he "has no direct relationship with Plaintiff to create a reasonable expectation of benefit," Plaintiff's argues that he may nonetheless recover under an unjust enrichment theory because "had [he] known that [Defendant] intended to use his likeness . . ., he had a right to be compensated for such use [and] a jury could determine that Plaintiff had a right of renumeration [sic]." Pl. Opp. at 23. He, further, argues that his filing of the instant suit "reveals an expectation of renumeration [sic]." Id.
This sort of argument has been explicitly rejected by New Jersey courts. In Fasching v. Kallinger, 211 N.J.Super. 26 (App. Div. 1986), the Appellate Division rejected an unjust enrichment claim by survivors of a murder victim who alleged that the defendant author and publisher of a book about the victim profited from the victim's story without first seeking their permission. The court based its ruling on two facts, that the plaintiffs did not confer any benefit on the defendants and that the plaintiff did not expect any remuneration at the time the victim's story was misappropriated. While the "Plaintiffs contend[ed] that had they known defendants were publishing a book they would have expected remuneration," the Court reasoned that "this fact lacks legal significance in the absence of any benefit conferred by plaintiffs." Id. at 36. Fittingly, this is the case upon which Castro, supra, relies in rejecting an unjust enrichment claim based on misappropriation of one's image. 370 N.J.Super. at 299-300.
Here, because Plaintiff alleges in his Amended Complaint that Defendant did not seek his permission before using his likeness or photograph, Plaintiff clearly did not confer any benefit upon Defendant. Accordingly, for the same reasons expressed in bothCastro and Fasching, Plaintiff's unjust enrichment claim fails and is dismissed with prejudice.
3. Civil Conspiracy
As to Plaintiff's civil conspiracy claim, Defendant argues that it must be dismissed for failure to allege that two parties agreed to conspire. Plaintiff's Amended Complaint asserts that Defendant conspired, and actively participated in, "utiliz[ing] [Plaintiff's] image for the sale of products bearing the identity and likeness of Plaintiff in disregard of the rights of Plaintiff." Am. Compl. at ¶¶ 44-45. There is no mention in the pleading of a second party with whom the Defendant conspired. Plaintiff argues in his opposition papers that this claim refers to a conspiracy between Defendant, the NCAA, and the Collegiate Licensing Company ("CLC"), which serves as the NCAA's licensing entity. In this connection, his proposed allegations aver that NCAA rules govern the use of players' images and that Defendant entered into an agreement with CLC to license NCAA member "teams' trademarks, uniforms, logos, etc., licensing all elements except collegiate athletes' likenesses." Pl. Opp. at 1-2.
Even if the Court permitted Plaintiff to file a Second Amended Complaint to incorporate his proposed allegations regarding the NCAA and CLC, those allegations make no mention of a conspiratorial agreement between Defendant and those parties to utilize his image in disregard of his rights. Because an agreement is essential to his cause of action, his proposed allegations could not resurrect his claim. See Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J.Super. 337, 364 (App. Div. 1993) ("A civil conspiracy is `a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties `to inflict a wrong against or injury upon another,' and `an overt act that results in damage."). Plaintiff is correct that an agreement may be proven by circumstantial evidence, see id. at 364-65, but he has failed to allege any agreement to inflict a wrong or injury. His only allegation is that Defendant, the NCAA, and the CLC agreed not to license his likeness. For this reason, granting Plaintiff leave to amend his conspiracy claim would be futile and his claim is, therefore, dismissed with prejudice.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion is granted. Plaintiff's right of publicity claims are dismissed without prejudice, and Plaintiff is granted leave to file a Second Amended Complaint asserting such a claim within twenty (20) days. Plaintiff's remaining claims are dismissed with prejudice.