Law Commons^™

Protecting The First Amendment Rights Of Video Games From Lanham Act And Right Of Publicity Claims, Yen-Shyang Tseng

Pepperdine Law Review

In 2013 and 2015, the Ninth Circuit decided two nearly identical cases in which professional football players alleged a video game publisher used their likenesses without authorization in a game that simulates real football games. One plaintiff brought a false endorsement claim under the Lanham Act, while others brought state law right of publicity claims. That made all the difference. The Ninth Circuit found the First Amendment protected the game against the false endorsement claim, but not against the right of publicity claims. These contradictory results stem from court’s application of the Rogers v. Grimaldi test to Lanham Act claims …

How To Write A Life: Some Thoughts On Fixation And The Copyright/Privacy Divide, Laura A. Heymann

Laura A. Heymann

No abstract provided.

The Split On The Rogers V. Grimaldi Gridiron: An Analysis Of Unauthorized Trademark Use In Artistic Mediums, Anthony Zangrillo

Fordham Intellectual Property, Media and Entertainment Law Journal

Movies, television programs, and video games often exploit trademarks within their content. In particular, various media often attempt to use the logos of professional sports teams within artistic works. Courts have utilized different methods to balance the constitutional protections of the First Amendment with the property interests granted to the owner of a trademark. This Note discusses these methods, which include the alternative avenues approach, the likelihood of confusion test, and the right of publicity analysis. Ultimately, many courts utilize the framework presented in the seminal Rogers v. Grimaldi decision. This test analyzes the artistic relevance of the trademark’s use …

When Individual Rights Should Tackle Unfair Commercialization: How The Transformative Use Test Should Be Tailored To Meet Evolving Technological Needs In Right Of Publicity Cases, Caitlin Kowalke

Cybaris®

No abstract provided.

Musicians, Politicians, And The Forgotten Tort, Arlen W. Langvardt

Fordham Intellectual Property, Media and Entertainment Law Journal

Election seasons regularly reveal uses of songs and recordings at campaign events and in campaign ads. Frequently, well-known performers who have recorded the songs object to the uses of the songs and recordings (and their recognizable voices). Often, the performers do not own the copyright to the songs or the recordings, so they have no copyright infringement claim to bring. Performers who seek legal relief against those responsible for the political uses have relied, thus far, on right of publicity claims or false endorsement claims under section 43(a) of the Lanham Act. However, judicial concerns about the proper reach and …

When Real People Become Fictional: The Collision Of Trademark, Copyright, And Publicity Rights In Online Stories About Celebrities, Stacey M. Lantagne

Journal of Law, Technology, & the Internet

"Fanficion is frequently defined as the writing of fiction involving the characters or setting of someone else’s creation. However, there is a subset of fanfiction that is known as Real Person Fiction, or RPF. This subset writes stories not about other people’s fictional creations but about real people, whether they be hockey players or movie stars, and it has long been the scene of heated debate in the fan community. Some fans who readily and enthusiastically engage with fanfiction draw strict “squick” lines about RPF and call it “creepy” and “disturbing.” "Perhaps for this reason, scholars have paid little attention …

The Court And The Cannonball: An Inside Look, Stephen Wermiel, Lee Levine

Articles in Law Reviews & Other Academic Journals

As lawsuits over the right of publicity proliferate among athletes and other celebrities, there is renewed interest, by litigants and judges alike, in the one decision by the U.S. Supreme Court that addresses a tort action arising from a "publicity" related claim, Zacchini v. Scripps-Howard Broadcasting Co. Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court justices' available papers shows that the Court did not view the case as presenting the type of claim that has become …

Comment On “Groove Is In The Hart”: A Workable Solution For Applying The Right Of Publicity To Video Games, Christopher B. Seaman

Christopher B. Seaman

No abstract provided.

“Groove Is In The Hart”: A Workable Solution For Applying The Right Of Publicity To Video Games, R. Garrett Rice

Washington and Lee Law Review

No abstract provided.

Comment On “Groove Is In The Hart”: A Workable Solution For Applying The Right Of Publicity To Video Games, Christopher B. Seaman

Washington and Lee Law Review

No abstract provided.

Fantasy Sports And The Right Of Publicity Are Under Further Review, Christopher Miner

Touro Law Review

No abstract provided.

A New First Amendment Goal Line Defense – Stopping The Right Of Publicity Offense, Mark Conrad

Mark A. Conrad

The use of images with the recognizable features of former NCAA student-athletes by a digital video firm has resulted in two highly publicized lawsuits by former college players claiming violations of their right of publicity. Thus far, two federal appeals courts – the Third Circuit in Hart v. Electronic Arts and the Ninth Circuit in Keller v. Electronic Arts -- have refused to dismiss their claims, concluding that the use of the player images constitute a valid cause of action. While their actions have garnered sympathy among the public and many scholars, it is the author’s contention that both lawsuits …

A New First Amendment Goal Line Defense – It’S Time To Stop The Right Of Publicity Offensive, Mark Conrad

Mark A. Conrad

No abstract provided.

Judgment For Federalism: A Case For Why The Right Of Publicity Should Be A Federal Right, Brittany Lee-Richardson

Student Award Winning Papers

The purpose of the right of publicity is to provide all individuals the right to control the commercial use of their attributes such as likeness, image or name. This state-based right is primarily concerned with protecting celebrities, hereinafter referred to as “personalities.”1 As the right gained more recognition from courts and legislatures in the last 25 years, its value to personalities increased substantially. Sport, entertainment and public figures, like Tiger Woods, Bill Clinton and Woody Allen, make millions of dollars2 from endorsements, speaking engagements, and right of publicity claims. Personalities are also taking advantage of the wide variation in right …

Right Of Publicity And The Intersection Of Copyright And Trademark Law, Marc Greenberg, Michael L. Lovitz

Publications

The Right of Publicity has its root in privacy law. Samuel Warren and Louis Brandeis, in an 1890 article in the Harvard Law Review, first defined this right as the right “to be left alone”. William Prosser followed their lead by enunciating a personal right of privacy based in four categories: 1) Protection against intrusion into one’s private affairs; 2) Avoidance of disclosure of one’s embarrassing private facts; 3) Protection against publicity placing one in a false light in the public eye; and 4) Remedies for appropriation, usually for commercial advantage, of one’s name or likeness.

The first three of …

What's In A Name? Fred Goldman's Quest To Acquire O.J. Simpson's Right Of Publicity And The Suit's Implications For Celebrities, Laura Hock

Pepperdine Law Review

No abstract provided.

Twitter Or Tweeter: Who Should Be Liable For A Right Of Publicity Violation Under The Cda?, Kristina M. Sesek

Marquette Intellectual Property Law Review

The Communications Decency Act (CDA), passed in 1996, immunized Internet service providers (ISPs) from being treated as the publisher or speaker of any information posted on their website by another person and from possible subsequent liability. The CDA also carved out an exemption for violations of intellectual property‹meaning an ISP could still be liable for information posted on their website by another person that violates an intellectual property right. However, the CDA did not spell out whether it intended to include only federal intellectual property rights or both federal and state intellectual property rights.

This Comment proposes two possible reasons …

How To Write A Life: Some Thoughts On Fixation And The Copyright/Privacy Divide, Laura A. Heymann

William & Mary Law Review

No abstract provided.

How The Other Half Lives (Revisited): Twenty Years Since Midler V. Ford - A Global Perspective On The Right Of Publicity, Alain Lapter

ExpressO

For celebrities, name and image are, arguably, two of their most valuable assets. From headlining a movie, to starring in a commercial, to endorsing a product, a celebrity’s persona is potentially worth thousands to millions of dollars. However, this intangible commodity’s worth is often siphoned off by those who appropriate a celebrity’s name or image without authorization or remuneration, thus potentially decreasing the property’s value. In order to stifle this unjust enrichment, celebrities greatly desire the absolute right to control the commercial exploitation of their name and likeness.

In this article, I examine the current state of the right of …

Fame, Roberta Rosenthal Kwall

Indiana Law Journal

No abstract provided.

The Single Publication Rule: One Action Not One Law, Debra R. Cohen

Journal Articles

Recovery in one action under one state's law for violation of the right of publicity-the right to control the commercial use of one's identity-arising out of multistate publication2 seems to be the trend of the nineties. When Samsung ran a nationwide print advertisement for VCRs depicting a robot dressed to resemble her, Vanna White sued for violation of her right of publicity.3 Under California law she recovered $403,000. 4 When a SalsaRio Doritos radio commercial imitating Tom Waits's distinctive raspy and gravelly voice aired nationwide, he sued Frito Lay for violation of his right of publicity.5 Under California law he …

Ain't Nothin' Like The Real Thing, Baby : The Right Of Publicity And The Singing Voice, Russell A. Stamets

Federal Communications Law Journal

The right of publicity has allowed celebrities and their licensees to commercially exploit "personality" through ever greater and subtler methods. Two celebrated cases involving entertainers Bette Midler and Tom Waits have expanded the right of publicity to the amorphous realm of vocal performance. The indeterminacy of this new right and the significant damages awarded in the leading cases have left commercial interests confused and hesitant. This Note argues that this new right unjustly rewards a small group of celebrity performers while reducing the economic incentives that encourage the development of new performers. This Note further argues that the right in …

The Right Of Publicity Vs. The First Amendment: A Property And Liability Rule Analysis, Roberta Rosenthal Kwall

Indiana Law Journal

No abstract provided.

Toward A Modified Fair Use Defense In Right Of Publicity Cases, Randall T.E. Coyne

William & Mary Law Review

No abstract provided.

Celebrities And The First Amendment: Broader Protection Against The Unauthorized Publication Of Photographs, D. Scott Gurney

Indiana Law Journal

No abstract provided.