The challenge of finding a workable solution for applying the right of publicity is a formidable one because it implicates not only a delicate balance between First Amendment rights and the rights of publicity, but also the complications of varying state laws. The best of the tests developed by the courts so far—the transformative use test—was borrowed from copyright law and itself reflects a careful balance between First Amendment and copyright interests. Additionally, because of dramatic progress in technology, it is likely that in the near future this balancing will often involve not only the rights of publicity and the First Amendment but also copyright law as well.
Jordan M. Blanke
Jordan M. Blanke, Frank Miller’s Sin City College Football: A Game to Die For And Other Lessons About the Right of Publicity and Video Games, 72 Wash. & Lee L. Rev. 379 (2015).
September 9, 2015