Free for a Fee

By Guest Blogger Tyler Ochoa

[Eric’s note: this is a long blog post from my colleague Tyler. It does a great job demonstrating that the interplay between the First Amendment and the publicity rights is completely anarchy, which isn’t surprising given that we don’t really understand what we’re trying to accomplish with the publicity rights doctrines in the first place. The post also raises the unexplained paradox why courts are more solicitous of publicity rights than Lanham Act claims, even though the latter involves consumer confusion/deception while the former doesn’t.]

The use of college athletes’ likenesses in sports-simulation videogames, such as Electronic Arts’ NCAA Football series, has spawned a number of lawsuits alleging that such use violates the athletes’ rights of publicity.  (These actions have been brought by retired college athletes, as the NCAA prohibits college athletes from commercially exploiting their rights of publicity while in college, as a condition of maintaining their “amateur” status.)  Two federal Courts of Appeals have now held 2-1 that the First Amendment does not protect Electronic Arts’ depiction of actual college players, so that EA may be held liable under state right of publicity laws.  The agreement between the two courts makes it considerably less likely that the Supreme Court will review either one of the cases when it resumes sitting in October.

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