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The Best of Two Tests: A Hybrid Test for Balancing Right of Publicity and First Amendment Interests Tailored to the Complexities of Video Games

  • Author(s): Frontera, Nicholas E.
  • et al.
Abstract

Over the past six decades, the right of publicity has been developed almost as quickly as the world around it. As major advances in film and computer technology have allowed content producers to depict real people in their works in a plethora of new ways, the people depicted have used the right of publicity to challenge many of these uses. As a result, courts have been faced with constantly remolding the right of publicity to account for these technological advances. As a creature of state law, the development of the right of publicity has varied across the country, with little guidance from the Supreme Court or Congress. However, courts across the circuits have consistently recognized that the property right granted by the right of publicity must be balanced against the First Amendment rights of the creators of expressive works.

Ultimately, courts have developed a number of tests to balance the right of publicity against the First Amendment. One such test, the “transformative test,” was developed by the California Supreme Court and has been used in a number of circuits. This Comment argues that though the transformative test may have been appropriate when used in the context it was created, traditional still artistic depictions, it has been overextended and is ill-suited for the analysis of interactive media such as video games. Specifically, this Comment takes issue with a standard announced by the California Supreme Court, in No Doubt v. Activision Publishing Inc., and then followed by the Ninth Circuit in Keller v. Electronic Arts. This standard, now used by courts when applying the transformative test to video games, states that literal depictions of celebrities within works will not be protected under the First Amendment if the celebrity is depicted doing what they became famous for. This Comment demonstrates that this standard is in direct conflict with case precedent in a variety of contexts including: art, film, and literature. Ultimately, this Comment contends that a new test must be crafted to balance the right of publicity with the First Amendment. Such a test must possess the flexibility to analyze both simple artistic depictions and depictions within more complex interactive media. This Comment offers one such test, which borrows and adapts language from the transformative test and the Rogers Test, to create a method of analysis that is better suited for application to both simple and complex media of expression.

 

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