Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a case at the Supreme Court for consideration, about public personalities and their right to profit from the use of their images in products.
THE STATEMENT AT ISSUE:
“Without this court’s guidance, artists, musicians, and other content creators will remain unsure what standards apply to their expression….If the realistic portrayal of a person in an expressive work can strip the work of First Amendment protection, then countless creative works are at risk [of being sued], including films about historical figures or events, unauthorized biographies, works of historic fiction, dramatic renderings of historical figures, works of cultural or political satire, and fantasy sports games.”
– Excerpt from a document filed in the Supreme Court, seeking clarification of the constitutionality of state laws that give celebrities or other public personalities a legal right to sue to challenge others’ publication of their likenesses or personal characteristics. The case involved is Electronic Arts v. Davis. The Justices will soon consider whether to rule on that case.
WE CHECKED THE CONSTITUTION, AND…
America’s founding document, as interpreted by various courts, sends mixed signals about who has the legal right to create publicity about prominent individuals who have gained enough fame to make their images almost instantly recognizable, even in the form of caricature.
Since the Supreme Court last ruled on this constitutional question nearly 40 years ago, some 20 states have passed so-called “right of publicity” laws, and additional states recognize such a right under court decisions applying traditional common law principles.
Although they vary in their specific forms, the right such laws create is basically tied to the simple proposition that a person whose talents or actions have brought them fame should have the right to exploit that fame for their own economic and career gains. Its legal content is borrowed, mainly, from intellectual property laws like those in the copyright and trademark fields.
It is not an exclusive right, in the sense that no one else could ever portray such a celebrity’s likeness or personal characteristics. Such a sweeping right would run counter to the free expression guarantees of the First Amendment and would, for example, essentially put newspaper editorial cartoonists and late-night talk show hosts out of business.
But the right that is now written into state laws or court decisions has become so varied in its reach, from state to state, that the dividing line between what is legally permitted and what is legally forbidden is not at all clear.
That uncertainty has only grown since 1977, when the Supreme Court last issued a definitive ruling on the “right of publicity.” It did so in the case of a television program that showed to its audience the entire performance, start to finish, of a carnival act of a performer who was shot out of a cannon. The case was Zachini v. Scripps-Howard Broadcasting Co.
Hugo Zachini, the “human cannonball,” won his case against the TV station in the Supreme Court. But the decision was limited to only the most extreme factual situation: the station had used his entire act on its news program without permission. Declining to draw a bright constitutional line to cover any other facts, the court said simply that “we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent.”
The gap that the ruling left has since been filled with a variety of versions of a right of publicity. Some go so far as to allow a lawsuit against a portrayal that merely “evokes” the image of a celebrity, without attempting to copy or caricature that person’s identity precisely.
So far, the Supreme Court itself has declined to reopen the issue, refusing to hear several attempts to appeal lower-court decisions. But it will shortly have a chance, if it is ready to step back into the controversy, to take on a new test case.
Three now-retired professional football players are in the process of suing the California company that, once a year, puts out a video game allowing its users to “play” a game that closely resembles the full panorama of a real National Football League game. The main feature of such games created by Electronic Arts are the likenesses of NFL star players. Called “avatars,” they look like the real players and they wear the jerseys containing the numbers that those players have worn, and perform feats equal to those that occurred during actual games.
The difference is that the game-player can manipulate the plays and players to result in different outcomes from those in particular real games. But the video games would not be nearly as popular, Electronic Arts believes, if it were not for the realistic depictions of actual players.
The case has not yet run its full course in lower federal courts, but it has resulted in the definition of a legal standard the courts are to follow in applying California’s right-of-publicity law.
In a decision last year, the U.S. Court of Appeals for the Ninth Circuit started with the fact that the Supreme Court has recognized that video games are a form of expression protected by the First Amendment. (It did so in a 2011 decision striking down an attempt to ban violent video games; that was not a right-of-publicity case.)
But the appeals court went on to declare that the First Amendment provides no protection for video games unless the depiction has added significant creative elements so as to be transformed into something more than a mere likeness or imitation of a celebrity’s characteristics. The appeals court ruled that the Electronic Arts’ games did not meet that test because the avatars are too close to the real thing – the former players engaged in the same activity in which they performed while still active in the NFL.
The California company’s appeal to the Supreme Court argues that other appeals courts disagree with the Ninth Circuit Court. Its appeal has the support of a variety of other producers of creative works, as well as a group of scholars of constitutional law. The former NFL players, however, are urging the court not to get involved at this point, saying that the case is in early preliminary stages, and thus is not fully developed yet.
Whether or not the court does choose to sort this out in this particular case, it is clear that the controversy is going to continue, and only the Justices can decide it in a definitive way.
