FAN 83.1 (First Amendment News) Momentum Builds in Right of Publicity Case — Volokh & Rothman File Amicus Brief Urging Review

Professor Jennifer Rothman

Professor Jennifer Rothman

The momentum is building in Electronic Arts, Inc. v. Davis, the Right of Publicity case in which Paul M. Smith recently filed a cert. petition. In what may be shaping out to be the most important First Amendment case of this Term, Smith has just received some impressive support by way of an amicus brief to be filed later today by UCLA Law Professor Eugene Volokh and Loyola, Los Angeles, Law Professor Jennifer Rothman. Twenty-nine noted scholars signed onto their brief (see listing below).

If ever there was cert-worthy case — a case in which the cert. stars seem to be aligning — the EAI case is the one. The circuit and state courts are all over the conceptual map with assorted and conflicting tests being used in the SecondThirdFifthSixthEightNinthTenth, and Eleventh Circuits and in the FloridaKentucky, and Missouri Supreme Courts. Confusion abounds, and this as asserted First Amendment rights twist in the varying doctrinal winds.

Enter Volokh and Rothman, two scholars quite familiar with this intersection of tort law and the First Amendment.  Here is how they open their brief: “The right of publicity affects a vast range of fully constitutionally protected speech. Right of publicity lawsuits are routinely brought over books, films, songs, paintings and prints (in traditional media or on T-shirts or cards), and video games that mention someone’s name, likeness, or other ‘attributes’ ‘of identity.’ The First Amendment must often protect such references to people, whether in news, entertainment, or art. Courts throughout the country have therefore recognized First Amendment defenses in many right of publicity cases involving expressive works.” (notes omitted)

“Unfortunately,” they add, “there are now five different First Amendment tests that lower courts use in right of publicity cases (setting aside cases involving com- mercial advertising, which is less constitutionally protected than other speech). Unsurprisingly, these different tests often lead to inconsistent results, which leave creators and publishers uncertain about what they may say.” (note omitted)

Professor Eugene Volokh (credit: UCLA Magazine)

Professor Eugene Volokh (credit: UCLA Magazine)

Because of the confusion in the lower courts, Volokh and Rothman argue that this “state of uncertainty is especially dangerous not for major enterprises such as Electronic Arts, but for smaller authors and publishers that lack the money to litigate such cases (even when their First Amendment defense is very strong). Many such small speakers are likely to be chilled into following the most restrictive standards, and the most restrictive interpretations of those (often vague) standards. If this situation is left uncorrected by this Court, a wide range of expression in movies, plays, novels, songs, video games, documentaries and more will be deterred.”

The rulings in Davis v. Electronic Arts, Inc. (9th Cir. 2015) and Keller v. Electronic Arts, Inc. (9th Cir. 2013), they stress, “also treat the First Amendment defense to the right of publicity as weaker than the First Amendment defense to trade- mark law. This too merits this Court’s review.”

Below is the list of scholars who signed onto the amicus brief:

  1. Jack Balkin
  2. Barton Beebe
  3. Erwin Chemerinsky
  4. Stacey L. Dogan
  5. Jay Dougherty
  6. Gregory Dolin
  7. Eric M. Freedman
  8. William K. Ford
  9. Brian L. Frye
  10. William T. Gallagher
  11. Rick Garnett
  12. Jon M. Garon
  13. Jim Gibson
  14. Eric Goldman
  15. Stacey M. Lantagne
  16. Mark A. Lemley
  17. Raizel Liebler
  18. Barry P. McDonald
  19. Tyler Ochoa
  20. Aaron Perzanowski
  21. Lisa P. Ramsey
  22. Kal Raustiala
  23. Martin H. Redish
  24. Betsy Rosenblatt
  25. Steven H. Shiffrin
  26. Christopher Jon Sprigman
  27. Geoffrey R. Stone
  28. Rebecca Tushnet
  29. David Welkowitz

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