Fumbling the First Amendment: The Right of Publicity Goes 2–0 Against Freedom of Expression

16 Pages Posted: 23 Mar 2017

Abstract

Two circuits in one summer found in favor of college athletes in right-of-publicity suits filed against the makers of the NCAA Football videogame. Both panels split 2–1; both applied the transformative use test; both dissenters predicted chilling consequences. By insisting that the likeness of each player be “transformed,” the Third and Ninth Circuits employed a test that imperils the use of realistic depictions of public figures in expressive works. This standard could have frosty implications for artists in a range of media: docudramas, biographies, and works of historical fiction may be at risk. This Comment examines the tension between the right of publicity and the First Amendment and argues for a bright-line test that ensures greater protection for creators of expressive works.

Suggested Citation

Kadri, Thomas, Fumbling the First Amendment: The Right of Publicity Goes 2–0 Against Freedom of Expression. Michigan Law Review, Vol. 112, No. 8 (2014). Available at SSRN: https://ssrn.com/abstract=2936283

Thomas Kadri (Contact Author)

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511

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