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

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.IntroductionProminence has its pitfalls. A rich respect for commentary on public figures pervades our First Amendment tradition.1 As Justice Frankfurter observed, "One of the prerogatives of American citizenship is the right to criticize public men and measures."2 We hold dear the "free flow of ideas"3 and insist that expression must remain "uninhibited, robust, and wide- open."4 Behind these ideals lies a simple principle: limits on the content of speech must be scrutinized.5 When creators of expressive works fret about the content of those works, we all suffer from the chilling effects. Judges must proceed with care when they restrict an artist's ability to engage with a particular subject.Two circuits in one summer faced an identical question: When an ex- pressive work contains a realistic portrayal of a public figure without that person's permission, does the First Amendment protect the creator against a right-of-publicity claim?6 Both courts essentially said that it does not. If art- ists wish to depict public figures, they must now sufficiently "transform" the person's likeness or obtain consent.7This Comment argues that these courts erred in requiring that a likeness be "transformed" when used in an expressive work. Courts should instead shield creators of expressive works from right-of-publicity claims unless the creators use a realistic portrayal that is wholly unrelated to the content of their work or is simply a disguised commercial advertisement. Part I in- troduces the friction between the right of publicity and freedom of expres- sion. Part II chronicles the haphazard balancing tests that laid the shaky foundations for both decisions last summer. Finally, Part III argues for a bright-line test that leaves artists unencumbered when they use realistic por- trayal, while still preserving the right of publicity to combat false endorsement.I. The Right of Publicity vs. Freedom of ExpressionThe right of publicity emerged, paradoxically, from the right to privacy.8 States began to fashion statutory and common law remedies to protect the property interests of people already in the public eye.9 Now, over half of the states have laws granting people a "right of publicity," or "the right to pre- vent the unauthorized use of their names, likenesses, and other indicia of identity."10 The right of publicity advances a variety of societal interests, in- cluding "fostering creativity, safeguarding the individual's enjoyment of the fruits of her labors, preventing consumer deception, and preventing unjust enrichment."11But the right of publicity creates problems for free speech. Friction be- tween two competing ideals-a right to control the use of one's identity and a right to create expressive works - presents a constitutional dilemma. This friction increases because the First Amendment protects not only political speech but also "[e]ntertainment . . . motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dra- matic works."12 Moreover, the fact that many media are "published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. …