Meiselman, Denlea, Packman, Carton & Eberz P.C.

Meiselman, Denlea, Packman, Carton & Eberz P.C.

! Initially identified as a privacy and/or property right grounded in common law tort! First appeared in Federal court jurisprudence in 1953 when the right was described as something of pecuniary worth! Many States continue to recognize a common law right of publicity and several have enacted specific statutes; notably those with large entertainment industries (e.g. New York and California)

! [a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without written consent first obtained... may maintain an equitable action in the supreme court of this state and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person s name, portrait, picture or voice N.Y. Civ. R. Law at Sec. 51.

! Any person who knowingly uses another s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person s prior consent shall be liable for any damages sustained by the person or persons injured as a result. Cal. Civ. Code Sec. 3344(a). Meiselman, Denlea, Packman, Carton & Eberz P.C.

! The use of another individual s name or likeness in a work implicates the First Amendment rights of the author or creator of the new work! Because Celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues, particularly debates about culture and values. Comedy III Productions, Inc. v. Gary Saderup, 25 Cal. 4th 387, 391 (Cal. Sup. Ct. 2001).

! [N]ot all expression with respect to celebrities is insulated by the First Amendment. Comedy III Productions, Inc. v. Gary Saderup, 25 Cal. 4th 387, 391 (Cal. Sup. Ct. 2001).

! As one commentator has remarked, the body of law defining the contours of the First Amendment vis-à-vis the right of publicity can best be described as disordered and incoherent. Marshall Leaffer, The Right of Publicity: A Comparative Perspective, 70 Albany L. Rev. 1357, 1360 (2007).

! The most commonly used test is essentially a balancing test between the First Amendment and the right of publicity based on whether the right in question adds significant creative elements so as to be transformed into something more than a celebrity likeness or imitation. No Doubt v. Activision Publishing, Inc., 192 Cal.App.4th (Cal. Ct. App. 2011), quoting Comedy III.

! Another way of stating the inquiry is whether the celebrity likeness is one of the raw materials from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether a product containing a celebrity s likeness is so transformed that it has become primarily the defendant s own expression rather than the celebrity s likeness. Id.

! Putative class action brought by former starting quarterback for the Arizona State University and University of Nebraska football teams, against, inter alia, the developer of the video game NCAA Football! Court found that the use was not sufficiently transformative to bar plaintiff s California right of publicity claims, and denied defendant s motion to dismiss Meiselman, Denlea, Packman, Carton & Eberz P.C.

! EA s depiction of Plaintiff in NCAA Football is not sufficiently transformative to bar his California right of publicity claims as a matter of law. In the game, the quarterback of Arizona State University shares many of Plaintiff s characteristics. For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state EA does not depict Plaintiff in a different form; he is represented as what he was: the starting quarterback for Arizona State University. Further, the game s setting is identical to where the public found Plaintiff during his college career: on the football field. Id. at *5.

! Rock band No Doubt brought a right of publicity claim against the creator and owner of the Band Hero video game! Game used computer-generated images of band ( avatars ), and allowed gamers to un-lock band members and have them perform other artist s songs and have Gwen Stefani sing in a male voice! Band had authorized defendant to use their image, but argued that the use exceeded what they had contractually permitted Meiselman, Denlea, Packman, Carton & Eberz P.C.

! no matter what else occurs in the game, during the depiction of the No Doubt avatars, the avatars perform rock songs, the same activity by which the band achieved and maintains its fame. Moreover, the avatars perform those songs as literal recreations of the band members. That the avatars can be manipulated to perform at fanciful venues including outer space or to sing songs the real band would object to singing, or that the avatars appear in the context of a videogame that contains many other creative elements, does not transform the avatars into anything other than exact depictions of No Doubt s members doing exactly what they do as celebrities. Id. at 1034.

! Almost factually identical to Keller v. Electronic Arts, but brought under New Jersey common law as New Jersey does not have a statutory right of publicity claim! Court dismissed the action based on defendant s First Amendment defense; finding the use sufficiently transformative to merit protection under the First Amendment! Criticized the Keller court for failing to consider that the user could change the appearance of the character, and the interactive nature of the game Meiselman, Denlea, Packman, Carton & Eberz P.C.

! What matters for my analysis of EA s First Amendment right is that EA created the mechanism by which the virtual player may be altered, as well as the multiple permutations available for each virtual player image. Since the game permits the user to alter the virtual player s physical characteristics, including the player s height, weight, hairstyle face shape, body size, muscle size, and complexion... it follows that EA s artists created a host of physical characteristic options from which the user may choose. * * * In my view, the creation of these varied potential formulations of each virtual player alone makes the game a transformative use of Hart s image. Id. at 50.

Keller v. Electronic Arts EA does not depict Plaintiff in a different form; he is represented as what he was: the starting quarterback for Arizona State University... [T]he game s setting is identical to where the public found Plaintiff during his college career: on the football field. Hart v. Electronic Arts The malleability of the player s image in NCAA Football suggests, instead, that the image serves as an art-imitating-life starting point for the game playing experience. In this way, while the player image may not be fanciful..., it is one of the raw materials from which an original work is synthesized, [and] the depiction or imitation for the celebrity is [not] the very sum and substance of the work in question.

! Is the use a conventional, more or less fungible expression of the individual s image or likeness?! If the publicity right employed is the subject of a contract, carefully define the permitted uses of the image! The more creative the use of the individual s image or likeness, the more likely the use will be considered transformative and deserving of First Amendment protection