This week, CBLDF joined the Electronic Frontier Foundation and the Organization for Transformative Works to ask the Supreme Court to overturn a lower court’s decision that gives celebrities veto power over creative works featuring depictions of them and to untangle inconsistencies with how lower courts handle such cases by establishing a consistent standard under the First Amendment.
The case in question, EA v. Davis, involves retired professional football players who are featured in EA Games’ Madden NFL. The players invoked the right of publicity in suing EA over the use of their likenesses, and the Ninth Circuit supported their argument and held EA liable. CBLDF and OTW joined EFF on an amicus brief asking the Supreme Court to overturn the decision.
Right of publicity laws are meant to protect celebrities from the use of their name, image, or likeness for commercial purposes, such as advertisements, but they have been increasingly used to attack creative works protected by the First Amendment. These cases are further complicated by the fact that lower courts have taken different approaches to right of publicity cases. While most courts agree that the First Amendment limits right of publicity claims, they don’t agree where that limit lies. In the amicus brief, EFF identifies three approaches to right of publicity claims:
- Balancing “the free expression interest of the speaker against the purported injury suffered by the defendant”: These balancing tests prove to be unpredictable and they offer little guidance on what speech is allowed and at what point the artist is liable.
- The Rogers / Restatement test: This particular standard tends to lend greater protection for free expression by examining whether the work in question is being used to falsely represent a public figure’s endorsement of a product and rightly affirming that creative speech involving public figures is afforded First Amendment protection.
- The transformative use test: A test that applies copyright’s fair use doctine, the application of transformative use examines whether the creator intended to use the depiction of a public figure for commercial gain. The Ninth Circuit made their decision in EA v. Davis using this approach.
Given these disparate judicial approaches, the amicus brief contends that “an artist creating a work about a real person has little idea how a court might evaluate liability for use of that person’s likeness, particularly if she cannot be certain which jurisdiction’s rules might govern the analysis,” and demands that the Supreme Court establish a consistent measure for right of publicity cases.
CBLDF agrees that the right of publicity has been erratically interpreted by lower courts and used to stifle free expression, so we joined the EFF amicus brief, which also notes that right of publicity “has been asserted against biographies, comic books, songs, computer games, movies, and magazines, and has come to encompass virtually anything that ‘evokes’ a speciﬁc person.” The overly-broad and inconsistent application of right of publicity has been used to penalize artists and punish realistic expression. This is especially true in new media such as video and computer games, which were only recently awarded First Amendment protection in Brown v. EMA.
EFF, CBLDF, and OTF were not the only groups to file an amicus brief in the case: 31 constitutional law professors, the Entertainment Software Alliance, and the Thomas Jefferson Center for the Protection of Free Expression also filed amici in support of overturning the Ninth Circuit decision.
The entirety of the amicus brief follows.