Publicity Rights vs. The First Amendment

The right of publicity continues to emerge as a significant intellectual property right of which businesses must be aware—not only in the context of advertising and marketing, but in the context of a company's product itself. Several recent decisions interpreting the contours of the boundary between publicity rights and First Amendment rights suggest that advertisements and products which refer to actual people, living or dead, may be more risky than their producers realize.

There is an obvious tension between the right of publicity, which allows a person to control the commercial use of their name or likeness, and the First Amendment, which guarantees the right of free expression. Courts have developed various tests to balance these competing interests. The governing test in California, which is being adopted by increasing numbers of courts outside the California state courts, was promulgated by the state Supreme Court in Comedy III Prods. v. Gary Saderup Inc., 25 Cal. 4th 387 (Cal. 2001). The Comedy III court held that the critical factor in determining whether a defendant's First Amendment rights outweigh a plaintiff's right of publicity is whether the accused work is "transformative"—whether the plaintiff's identity is "one of the 'raw materials' from which an original work is synthesized, or... the very sum and substance of the work in question." The court found that prints of a realistic charcoal sketch of the Three Stooges, however masterfully executed, were not sufficiently transformative to avoid the right of publicity.

In the years since, the courts have sometimes struggled to articulate a clear standard for how to measure the transformativeness of a work. Recently, the appearance of virtual characters based (to some extent) on real-world individuals in video games has become the basis for several decisions exploring this problem.

One popular genre of video game is sports simulation, which allows players to assemble teams and pit them against one anotheroften using real-world athletes to staff the teams. In Keller v. Electronic Arts, 2013 DJDAR 10071 (9th Cir. 2013), a former NCAA quarterback claimed that Electronic Arts' game "NCAA Football," which included in its extensive roster a character that allegedly closely resembled the plaintiff, violated his statutory and common law rights of publicity under California law. Electronic Arts filed an anti-SLAPP motion. The district court applied the Comedy III standard and found that...