The right of publicity and the First Amendment in the modern age of commercial speech.

• Author: Redish, Martin H.
• Position: Abstract through II. The Right of Publicity and the First Amendment Collide A. Automatic Protection for Newsworthy and Public Affairs Speech, p. 1443-1472

ABSTRACT

The so-called, right of publicity gives individuals a legally protected interest against commercially motivated communicators' use of their names or likenesses for purposes of commercial gain. Although the right is sometimes viewed as a subcategory of the right of privacy, it may be exercised by the best known celebrities, as well as by the most private individual. It is therefore more properly characterized as a property interest in one's name and likeness than a protection of one's privacy.

In order to satisfy the concerns of the First Amendment right of free expression, however, the statutory and common law development of the right has always been qualified by a "public interest" exception: the right does not extend to the commercial use of an individual's name or likeness when either is employed as part of a communication that furthers the public's interest in acquiring information. This public interest exception, however, has never been applied to the communication of a profit-motivated speaker when the name or likeness is used as part of the commercial promotion of the sale of a product or service. It has long been assumed that such communications are merely commercial advertising, that inherently lack the public importance of expression by the more traditionally protected communications media. This assumption has been made despite the fact that the commercial advertiser may be communicating the exact same information about a celebrity that was given First Amendmentlike protection when disseminated by the equally commercially motivated media.

Although at the time these assumptions were made they were consistent with controlling First Amendment theory and doctrine, courts enforcing the right of publicity appear to have been operating in a time warp over the last thirty years, ignoring all but completely the evolution of a vigorous First Amendment protection of commercial speech. Application of currently accepted doctrinal precepts of commercial speech protection reveal that discrimination against commercial advertisers in invocation of the public interest exception is unambiguously unconstitutional. The only conceivable reason to discriminate against commercial advertisers when they communicate the exact same information about celebrities that is fully protected when disseminated by the commercially motivated communications media is the narrow profit motivation of the advertiser. This, however, is a constitutionally unacceptable basis for distinction; in no other area of First Amendment jurisprudence is a speaker disqualified because of his or her narrow self-interest--even when that interest is purely economic, as in the case of the commercial advertiser. This Article argues that the courts' willingness to incorporate established precepts of commercial speech protection into their right of publicity calculus is long overdue.

INTRODUCTION I. FOUNDATIONS OF THE RIGHT OF PUBLICITY A. Origins B. Philosophical Justifications 1. Moral Arguments a. Rewarding Labor and Preventing Unjust Enrichment b. Protecting Individual Autonomy and Personal Dignity c. Preventing Value Misrepresentation 2. Economic Arguments a. Incentivizing Socially Useful Activity b. Promoting Efficiency and Avoiding Rent Dissipation c. Protecting Against Consumer Confusion 3. In the End, What Justifies the Right of Publicity? II. THE RIGHT OF PUBLICITY AND THE FIRST AMENDMENT COLLIDE A. Automatic Protection for Newsworthy and Public Affairs Speech 1. California 2. New York B. "Expressive" Speech Subjected to Balancing Tests 1. Transformative Use Test 2. Predominant Use Test 3. The Rogers Test C. Commercial Speech as a First Amendment Defense? III. ADDING A COMMERCIAL SPEECH PERSPECTIVE: WHAT THE MODERN LAW OF COMMERCIAL SPEECH TELLS US ABOUT THE RIGHT OF PUBLICITY, AND VICE VERSA A. Profit Motivation and the First Amendment: The Flawed Theoretical Foundation of the Commercial Speech Doctrine 1. Evaluating Rationales for Stratifying Speech 2. Sorrell and the Right of Publicity B. The Irrational Distinction Between Forms of Profit Motivation 1. An Unprincipled Distinction Between Profit Motivated Speakers 2. Rejecting Attempts to Justify the Distinction a. The Persuasive Goal of Expression Does Not Reduce the Level of Protection b. Noncommercial Speech Does Not Deserve Special Treatment Because of "Tradition" c. The "Press" Clause Does Not Lend Greater Protection to Noncommercial Speech C. Applying Modern Commercial Speech Doctrine to the Right of Publicity CONCLUSION INTRODUCTION

Celebrity images pervade our modern, media-consumed culture. From red carpet award shows to celebrity gossip websites to social media networks, American consumers crave glimpses of their icons--and both celebrities and profit-making corporations know it. (1) But when profit-making corporations seek to draw on the obvious and evoke celebrity images for commercial benefit, they run up against a decrepit free speech shackle known as the right of publicity. (2) In both its statutory and common law formulations, the right of publicity operates as a means for people to control and profit from the commercial use of their identities. (3) Plaintiffs' assertions of this right, however, can directly impede both speakers' rights to free expression and listeners' and readers' rights to be informed. It may seem that our most fundamental constitutional guarantee would safeguard speech interests in a contest with what are principally pecuniary interests in publicity. The unconventional doctrinal development of publicity rights, substantially detached from the modern theory and doctrine of the First Amendment is producing troubling, even bizarre results. Today, courts routinely prioritize the pecuniary interest in publicity rights over the First Amendment right of free expression. In so doing, courts and defendants are failing to capitalize on nearly forty years of evolution in the law of commercial speech.

Recent cases involving celebrity avatars in video games illustrate the erroneous First Amendment applications at work. Just three years ago, the Supreme Court brought video games within the ambit of constitutionally protected expression. (4) Both the Third and Ninth Circuits have recently blinked, however, narrowing that protection in response to publicity rights claims. (5) The nature of the courts' contractions on free expression in video games has hinged on the purpose for which video game makers included celebrity identities and the courts' perceived value of those uses. In Hart v. Electronic Arts, Inc., the Third Circuit highlighted the centrality of realistic football player depictions to both "the core of the game experience" and to its marketability. (6) In In re NCAA Student-Athlete Name and Likeness Licensing Litigation, the Ninth Circuit underscored how the interactive game featuring avatars of real athletes was just that--"a game, not a reference source" capable of providing informational value. (7) The video games in Hart and In re NCAA thus had less First Amendment worth, according to the Third and Ninth Circuits, because they were made by profit-making corporations to entertain, not to inform. The courts addressing right of publicity claims thus discriminated on both the basis of the speakers and the content of the speech at issue.

Such reasoning is flawed for several reasons. First, it is all but impossible to distinguish the "informational" from the "entertaining." Second, even if one somehow could draw such a distinction, the two are by no means mutually exclusive, as the Ninth Circuit implies. Finally, and perhaps most importantly, the courts' analyses completely ignore two key Supreme Court precepts: its caution against distinguishing between discourse on public matters and entertainment, (8) and its oft-cited reminder that commercial motivation does not render speech unworthy of First Amendment protection. (9) These critical missteps on the part of the Third and Ninth Circuits, although problematic, are unfortunately not aberrational in the law of publicity rights. When it comes to adjudicating publicity rights claims against free speech interests, courts are stupefied. (10) They apply absurd distinctions, and they routinely discriminate against speech solely on the basis of speakers' profit motivation. (11)

How could the law possibly arrive at this point? In this Article, we find the culprit of this jurisprudence to be a surprisingly backwards right of publicity law, which has failed to keep pace with modern commercial speech development--in either doctrinal or theoretical terms--since 1976. Although jurists and scholars have bemoaned the confusing state of publicity rights doctrine and have conjured up many solutions for bringing order to the morass, (12) they continue to ignore a simple, basic principle that rings even truer in 2015: "Commercial speech is no longer the stepchild of the First Amendment." (13) In fact, unless the commercial speech in question is deemed false or misleading, the level of constitutional protection courts extend to commercial speech differs very little, if at all, from the degree of protection extended to traditionally protected noncommercial speech. (14)

This conclusion leads us to a simple insight: both as a doctrinal and as a theoretical manner, commercially motivated expression is appropriately extended the same level of First Amendment protection against right of...