Alexander Vlisides, MJLST Staff
The right of publicity tort is meant to balance two rights: a person’s limited right to control uses of their name or likeness and the right of artists and content creators to exercise their First Amendment rights. Unfortunately, courts have not addressed the First Amendment rights at stake in right of publicity cases with the deference or clarity that is required in other First Amendment contexts.
In Volume 14 of the Minnesota Journal of Law, Science and Technology, Micheal D. Murray argued that content creators should navigate right of publicity issues through common sense and an ethical approach to appropriating another’s likeness. In “DIOS MIO–The KISS Principle of the Ethical Approach to Copyright and Right of Publicity Law” Murray advises content creators to avoid legal issues by following the DIOS MIO acronym: “Don’t Include Other’s Stuff or Modify It Obviously.” In recent right of publicity decisions, courts have not conformed with this common sense approach.
Ryan Hart and Sam Keller are former NCAA quarterbacks. EA sports made a video game called NCAA Football, which features players that look and play exactly like Hart and Keller. Each of them sued EA sports, the makers of NCAA football, and the NCAA for violations of their right of publicity. In Hart v. Electronic Arts and In re NCAA Student Athlete Name and Likeness Litigation, the U.S. Courts of Appeals for the Third and Ninth Circuits, respectively, both found that EA had violated the players right of publicity, meaning that they would need to pay to use players’ likenesses in the video games. In many ways this seems like a very equitable outcome. These college athletes receive none of the profits while EA and the NCAA make hundreds of millions of dollars from these games.
However these cases give too little weight to the First Amendment rights at stake and provide little clarity for content producers to know what is protected from suit. When applied outside the sympathetic facts of this case, there is little to distinguish this video game from other works traditionally thought to be protected by the First Amendment, such as biographical books and films. The dissent in In re NCAA concluded that “[t]he logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context.”
In addition, the fundamentally unclear nature of right of publicity analysis is demonstrated by a paradox within the Hart decision. In the NCAA football games there are two uses of Ryan Hart’s likeness. One is the digital avatar that EA artists and designers created to look like him and operate in the interactive world of the game. Another is a simple photograph of him that is used as part of an introductory montage with other football players. The court found the avatar was not protected, but the photograph was. In other words, the court concluded that an animation of Hart, produced by artists, designers and engineers and placed into an interactive virtual world, is a “literal” depiction of Hart and thus unworthy of First Amendment protection, while a photograph of Hart, shown in a montage with other football players, has been transformed to be predominately the creative expression of its designers. A failure to clearly identify criteria and values informing right of publicity analysis led to this paradoxical result.
First Amendment protected creative content should not be subject to so inscrutable a standard. Courts should attempt to give content producers a more workable right of publicity standard by following Murray’s advice to KISS: Keep It Simple, Stupid.