Cases brought under US state right of publicity laws often draw on concepts in trademark and copyright law. Roxana Sullivan of Dennemeyer & Associates explains more.
The right of publicity, also called personality rights, prevents the unauthorised commercial use of a person’s likeness, name, or other recognisable aspect of his or her persona. As a result, it gives an individual the exclusive right to license the use of his or her identity for commercial gain. In the US, state law governs the right of publicity and only about half of the states have specific right of publicity statutes.
US courts have a long history of reviewing right of publicity cases in a variety of media, and over the years they have applied a variety of tests to balance publicity rights with the First Amendment (right of free speech). The only Supreme Court case to address that balance is Zacchini, which involved appropriation of the ‘Human Cannonball’ act created by the daredevil plaintiff . A news programme broadcast the entirety of Zacchini’s performance, thereby stripping him of the economic value that lay in it.
Over the years, right of publicity cases have extended beyond traditional media such as television, advertising, books, or comics. A more recent group of cases focusing on the use of plaintiffs’ likeness in video games has shifted right of publicity case law and the balancing test that courts apply.
This article will focus on the most recent three cases dealing with athletes depicted in sports video games. These cases, brought against Electronic Arts (EA) for allegedly violating the athletes’ right of publicity, have pushed and developed the balancing tests that courts use in such cases.