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Unpublished Paper
A New First Amendment Goal line Defense – Stopping the Right of Publicity Offense
ExpressO (2014)
  • Mark A. Conrad
The use of images with the recognizable features of former NCAA student-athletes by a digital video firm has resulted in two highly publicized lawsuits by former college players claiming violations of their right of publicity. Thus far, two federal appeals courts – the Third Circuit in Hart v. Electronic Arts and the Ninth Circuit in Keller v. Electronic Arts -- have refused to dismiss their claims, concluding that the use of the player images constitute a valid cause of action. While their actions have garnered sympathy among the public and many scholars, it is the author’s contention that both lawsuits – along with rulings over the last two decades – have resulted in an unwarranted expansion of this right thereby trampling on the First Amendment rights of producers of such content. This article explores the various tests in which courts have utilized in determining right of publicity actions and concludes that each of those standards shortchanges free expression. An increasingly popular approach is the “transformative test” applied in both of the featured cases, which focuses on the creativity of the work rather than its intended use. Neither the transformative test, nor any of the others presently utilized by courts in other jurisdictions give adequate First Amendment weight to right of publicity cases and this article proposes a new, constitutionally-based test that will create an immunity for any use of one’s name or image that is not solely commercial and in doing so will pre-empt the myriad tests created by different courts in different jurisdictions under different state statutes or common law rules. The scope of what is “commercial use” will be limited, based on the Restatement of Unfair Competition and commercial speech doctrine, where courts have generally applied a lesser degree of First Amendment protection than for other kinds of speech. The proposed immunity would bar any claims for speech not entirely commercial, with one exception, based on the bad faith of a defendant who creates a non-commercial use to take advantage of the immunity. Although a few courts have been more sensitive to First Amendment protection of uses of a name or likeness, no court has fashioned or proposed the formal constitutionalization of this right. Akin to New York Times v. Sullivan and its progeny, which created a First Amendment presumption that upended centuries of defamation law, the creation of this new constitutional immunity would stop the overexpansion of right of publicity protection and bring a greater First Amendment imprimatur to an area of law that has grown too quickly and deprives video designers and other creative artists of their First Amendment rights.
  • Right of Publicity,
  • First Amendment,
  • Commercial Speech,
  • Sports and Entertainment
Publication Date
February 11, 2014
Citation Information
Mark A. Conrad. "A New First Amendment Goal line Defense – Stopping the Right of Publicity Offense" ExpressO (2014)
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