A New Test to Reconcile the Right of Publicity with Core First Amendment Values

– Mark Joseph Stern and Nat Stern

As the right of publicity has evolved since its inception in 1953 one thing has remained the same – the struggle to balance publicity interests with free speech rights. Currently, there are five tests lower courts use to analyze right of publicity claims, and it does not appear the inconsistencies between these tests will be clarified any time soon. In 2016 the Supreme Court denied certiorari in Davis v. Electronic Arts, Inc. after the Ninth Circuit rejected a First Amendment defense to right of publicity claims. This denial concerns critics and scholars because it allows right of publicity claims to function as censorship tools. It also leaves authors, artists, and content creators with little guidance on when they can use other people’s identities without permission and when they can invoke their first amendment rights. This article attempts to prevent potentially censorious right of publicity claims by proposing a new test that borrows concepts from intellectual property law and First Amendment jurisprudence. By considering factors such as the type of public figure a person might be, whether commenting upon the plaintiff is a significant purpose of the work, whether the commentary is intentionally malicious, and the impact the defendant’s work might have on the plaintiff’s ability to profit, the authors suggest their test brings clarity to cases that pit the right of publicity against freedom of speech.

Abstract Written by Rachel N. Goldberg