Fumbling the First Amendment: The Right of Publicity Goes 2-0 against Freedom of Expression

Authors

• Thomas E. Kadri, University of Michigan Law SchoolFollow

Document Type

Response or Comment

Publication Date

6-2014

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.

Recommended Citation

Thomas E. Kadri, Fumbling the First Amendment: The Right of Publicity Goes 2-0 against Freedom of Expression, 112 Mich. L. Rev. 1519 (2014).