Sporting Chance

– Intellectual Property Magazine

Conceived in a Harvard Law Review article by Louis Brandeis in 1890, the right of publicity has been the subject of only one US Supreme Court opinion in the intervening 123 years. Considering that that opinion was rendered 36 years ago regarding an old-fashioned human cannonball act and considering all of the changes in technology since 1890 (including widespread use of videogames), a clarification of this difficult legal concept is long overdue.

Not that there is any shortage of lower court opinions on the issue, but the problem is that these cases have produced a plethora of different judicial tests and contradictory conclusions, most recently two federal district court cases that came to opposite conclusions on the same facts. Now, however, two important US circuit courts of appeal (the Third and the Ninth) are considering these contradictory district court opinions.

If the two circuit courts render similar opinions of substance, they are likely to have a clarifying influence over this very unclear legal area. If the two circuit courts disagree, the stage would be set for the first Supreme Court review since 1977, which should also bring clarification.

Republished with permission by Intellectual Property Magazine,

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