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We’ll be paying close attention to the Ninth Circuit Court of Appeals tomorrow in an important case testing the boundaries of publicity rights and the First Amendment.
Former University of Nebraska quarterback Sam Keller is leading a class action lawsuit on behalf of thousands of former collegiate athletes who allege video game publisher Electronic Arts and the NCAA owe them millions of dollars for using their images in sports video games. Last year, a federal district court in San Francisco denied the NCAA’s attempt to dismiss the lawsuit, potentially putting at risk licensing deals valued at $4 billion.
The case will be reviewed tomorrow at the Ninth Circuit and may mean much, much more than just the liability of video game publishers and the economic foundation of collegiate sports in this country. The outcome of the case figures to impact how broadcasters and publishers can speak about or use real-life personalities in creative and commercial endeavors. For that reason, the dispute has attracted a wealth of amicus briefs from big media corporations like Viacom down to growing digital ventures like Gawker Media.
The case has also split Hollywood, with movie and television studios supporting EA and actors and writers siding with collegiate athletes.
Let’s examine what each has to say.
The MPAA has submitted a amicus brief that looks to safeguard the marketplace of ideas.
In its brief, the movie industry points out that filmmakers often take the real world for inspiration to develop characters and scenes based on real-life individuals. Sometimes, it’s literal, says the MPAA, such as when Forrest Gump employed archival newsreel footage of prominent public figures to create the backdrop for the title character’s fictional encounters. Sometimes, it’s representational, such as when Frost/Nixon dramatized journalist David Frost‘s famous televised interviews with Richard Nixon. And sometimes, it’s allusive, such as when Citizen Kane modeled the title character after newspaper magnate William Randolph Hearst.
If the Ninth Circuit Court of Appeals holds that the athletes’ publicity rights trump the free expressive speech found in a video game, the MPAA worries how this standard will be applied in other creative work situations. Will filmmakers, for example, have to be extra careful when creating biographical works? Will documentaries survive?
The MPAA argues that courts should generously apply what’s known as the “transformative use” test, a doctrine borrowed from copyright law that allows for the fair use of protected expression so long as the material has been substantially altered with creative purpose. According to the brief: “Even the most literal depictions of a celebrity likeness may be ‘transformative,’ where analyzed in context to discern the expressive effect that the filmmaker, author or artist has achieved, or sought to achieve, in the work as a whole.”
Another amicus brief submitted by SAG, AFTRA, and the WGA, strongly disagrees with this assessment. Although the case involves athletes, these groups believe that the controversy at hand could just as easily apply to performers who wish to protect their likenesses from being commercially exploited.
These groups emphasize that last bit. Should courts know the difference between creative purpose and commercial purpose? Yes, says the performers guilds. Otherwise, it would lead to “a slippery slope, exposing individuals to exploitation not only by manufacturer’s of products disguised by the veil of ‘artistic expression’ but also to purveyors of pornography or other exploitive works.”
SAG, AFTRA, and the WGA argues against a very generous “transformative use” test, saying courts should focus on the depictions of individuals and not, as the MPAA argues, the work as a whole. These groups add that they have no worries about publicity rights usurping our free speech because legitimate works can rely on statutory “public affairs” or “public interest” defenses when necessary and appropriate.
Protecting individuals from exploitation while safeguarding the ability to speak freely is growing ever more tricky. Especially when the boundaries between commercial and expressive speech are collapsing and the lines between art and commerce are melting away. Tomorrow, a panel of justices at the Ninth Circuit will shape the future for all those whose businesses rely on the public persona.
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