Rights of Publicity: Contradictions In The Courts

– Law360

A recent New Jersey federal district court decision, Hart v. Electronic Arts Inc., described the body of law attempting to balance First Amendment rights with the right of publicity as "disordered and incoherent,"[1] a description with which those practicing in this subject area would readily agree. Ironically, however, Hart exacerbated this incoherence by coming to, on the same facts, an opposite conclusion from a California federal district court decision that preceded it by 18 months, Keller v. Electronic Arts.[2]

Both of those cases are now on appeal, to the Third and Ninth Circuits respectively. The purpose of this article is to explore one of the central issues that arose from the diametrically opposed reasoning of these cases - transformativeness.

In summary, if an image of a person is transformed sufficiently, then the First Amendment trumps the right of publicity and vice versa. The results of these appeals on the issue of transformativeness are likely to have a dramatic impact on athletes' rights of publicity in one of the most important marketplaces for those rights, video games.

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