All the World's Not a Stooge: The 'Transformativeness' Test for Analyzing a First Amendment Defense to a Right of Publicity Claim Against Distribution of a Work of Art
79 Pages Posted: 26 Oct 2004
This article reviews the case law in which claims of violation of the right of publicity have been brought against expressive works, leading up to the California Supreme Court's decision in Comedy III v. Saderup. It then reviews the Saderup decision and the transformativeness test elaborated by that court to resolve conflicts between freedom of expression and the right of publicity. The article then critiques the transformativeness test. First, it considers distinctions between copyright law and the right of publicity that suggest that application of this part of copyright's fair use law to right of publicity claims inadequately protects speech. Second, it considers the transformativeness test from the perspective of First Amendment jurisprudence, particularly contrasting balancing approaches versus categorical approaches. It concludes that applications of right of publicity claims against expressive works portraying real people should be subject to strict scrutiny and that neither the right of publicity itself as applied to such works, nor the transformativeness test, should survive strict scrutiny. Finally, the article suggests that categorically excluding right of publicity claims against the exploitation of copies of images of real people not used for advertising or in connection with unrelated products would better serve First Amendment interests. Short of such a categorical limitation, the article argues that, to limit chilling effects, the transformativeness test should be liberally applied and should incorporate procedural approaches favoring early resolution of claims.
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