As Justice Ruth Bader Ginsburg stated, "the First Amendment securely protects the freedom to make…one's own speech; it bears less heavily when speakers assert the right to make other people's speeches." Similarly, courts have struggled with how to reconcile the right of freedom of speech with the right of publicity and other intellectual property rights. In the process, courts have created eight different tests to address the issue. They can be characterized as 1) the merchandise versus media test, 2) the U.S. Supreme Court's test in Zacchini v. Scripps-Howard Broadcasting Company, 3) the transformative use test, 4) the constitutional malice test, 5) the balancing test of Rogers v. Grimaldi, 6) the relatedness test found in the Restatement (Third) of Unfair Competition, 7) the alternative means test, and 8) the predominant use test.
Two Ninth Circuit decisions-In re NCAA Student Athlete Name & Likeness Licensing Litigation (NCAA) and Brown v. Electronic Arts-as well as a similar case from the Third Circuit, Hart v. Electronic Arts, are recent reported appellate attempts to address four of these tests as they apply to the right of publicity.
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