O'Bannon - What is the Right of Publicity?

Abstract

The purpose of this article is to explain the Right of Publicity and how its application differs in various states. In 2009 former UCLA basketball star Ed O'Bannon filed a lawsuit against the NCAA and the Collegiate Licensing Co. The basis of the lawsuit was for their failure to compensate him and other student-athletes during and after their collegiate athletic careers for the use of their names, images and likeness on trading cards, video games and other materials.

The Right of Publicity is a protectable property interest in one's name, identity or persona. Every person, celebrity or non-celebrity has a right of publicity that is the right to own, protect and commercially exploit one's identity. This is the central issue in the O'Bannon case that went to trial on June 9, 2014.

Today 19 states have publicity statutes which differ widely. Thirteen states do not recognize the right of publicity. Fame is valued. The right of publicity protects the athlete's proprietary interest in the commercial value of his or her identity from exploitation by others.

On August 8, 2014 U.S. District Judge Claudia Wilken ruled in favor of the plaintiffs in O'Bannon v. NCAA. She issued an injunction that will prevent the NCAA from enforcing any rules or bylaws that would prohibit member schools and conferences from offering a limited share of revenue generated from the use of player's names, images and likenesses over and above a full grant-in-aid. Wilken's ruling has limitations on plaintiffs. So, to borrow a phrase from basketball lexicon, O'Bannon did not make a clean sweep, but certainly made a game changer.

Keywords: O'Bannon, Right of Publicity, NCAA, Student-Athlete