A Change of Hart: An Argument Favoring the Transformative Use Test in Right-of-Publicity Cases

By Rosenzweig, Benjamin J. | Suffolk University Law Review, Winter 2015 | Go to article overview

A Change of Hart: An Argument Favoring the Transformative Use Test in Right-of-Publicity Cases


Rosenzweig, Benjamin J., Suffolk University Law Review


I. INTRODUCTION

The First Amendment of the U.S. Constitution guarantees the freedom of expression and seeks to foster an environment where individual ideas can freely flourish and develop. (2) While the right of free expression is imperative in a democratic society, it is not an absolute right. (3) The objective of safeguarding the integrity of free expression must be constantly balanced against competing interests. (4) One interest that has clashed with the freedom of expression over the last half-century is the right of publicity. (5)

The modern day right of publicity, which protects against the misappropriation of an individual's identity, recognizes that an individual should have control over the commercial value of his image. (6) Courts, however, have struggled to develop a consistent framework to measure this interest against the substantial weight of the First Amendment. (7) Initially defined in Comedy III Productions, Inc. v. Gary Saderup, Inc., (8) the transformative use test seeks to balance an individual's right of publicity with the interests protected by the First Amendment. (9) Specifically, the transformative use test examines whether a particular expressive work sufficiently transforms a celebrity's identity, or "likeness," into something more. (10)

Recently, the transformative use test has been applied to college athletes suing the National Collegiate Athletic Association (NCAA) and Electronic Arts (EA) for using their likeness to develop video games that seemingly replicate their identities. (11) In Hart v. Electronic Arts, Inc., (12) the Third Circuit ruled in a split decision that EA's game did not sufficiently transform a college athlete's likeness so as to outweigh his publicity rights. (13) In the case In re NCAA Student-Athlete Name & Likeness Licensing Litigation, (14) the Ninth Circuit echoed the Third Circuit's sentiment, agreeing that under the transformative use test, EA's use of a college athlete's likeness in its "NCAA Football" games did not deserve First Amendment protection. (15) If, however, EA's own creative and interactive elements are not considered sufficiently transformative, the question remains: what constitutes a transformative use worthy of First Amendment protection? (16)

This Note will analyze the tension between the right of publicity and freedom of expression, particularly as it relates to the recent alleged misappropriation of the images of college athletes. (17) Part II.A examines the development of the right of publicity, including its evolution from the right of privacy and its interplay with the First Amendment. (18) Part II.B outlines the trajectory of the balancing tests used by courts before arriving at the transformative use test, which is emerging as the most effective way to resolve the tension between the two competing interests. (19) Part II.C explores the Hart and In re NCAA Student-Athlete Name & Likeness Licensing Litigation decisions, discussing the Third and Ninth Circuits' preference for the transformative use test in order to arrive at an equitable result. (20) Finally, Part III will analyze Hart and In re NCAA Student-Athlete Name & Likeness Licensing Litigation and suggest that the courts' willingness to strike the balance in favor of the right of publicity reflects a preference for economic prosperity. (21) Moreover, this Part argues that the transformative use test is the appropriate test to resolve conflicts between the First Amendment and the right of publicity. (22) In favoring the right of publicity in the context of college athletes, courts are not promoting censorship. (23) Rather, courts are allowing college athletes, as public individuals, to capitalize on their commercial value by preventing others from exploiting their image. (24)

II. HISTORY

A. The Right of Publicity's Foundation

Before the right of publicity emerged as a means of preventing the appropriation of one's image, individuals were confined to asserting the right of privacy. …

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