9th Circuit Court Elevates Celebrity Privacy Rights Over Video Game Portrayals

The EFF posted a biting response to yesterday's Ninth Circuit ruling that heavily weights celebrities' right to privacy, and construes that right very broadly. From the EFF summary of the case: "The plaintiff, Sam Keller, brought the case to challenge Electronic Art (EA)'s use of his likeness in its videogame NCAA Football. This game includes realistic digital avatars of thousands of college players. The game never used Keller’s name, but it included an avatar with his jersey number, basic biographical information, and statistics. Keller sued EA claiming that the game infringed his right of publicity — an offshoot of privacy law that gives a person the right to limit the public use of her name, likeness and/or identity for commercial purposes. ... Two judges on the panel found that EA’s depiction of Keller was not transformative. They reasoned that the 'use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.'" The piece later notes that this reasoning "could impact an extraordinary range of protected speech."

Comments

Re:some are more equal than others

[GodfatherofSoul]

Isn't that Animal Farm?

somewhat California-specific

[Trepidity]

It's worth noting that the U.S. has no federal copyright-like "publicity right". Authors have copyright, and inventors have patents, but the Copyright & Patent Clause does not authorize any other kind of IP.

California, on the other hand, has a specific law granting celebrities exclusive use over their likenesses. Since it's a state law, in a federal court it prevails unless either it's preempted by a federal law under the preemption doctrine, or violates an incorporated-against-the-states right of the people, such as First Amendment. Here, the court held that California's law didn't violate the First Amendment.

That isn't good, but it doesn't actually mean that celebrities have some kind of inherent or national right to control their likenesses. States which disagree with this kind of outcome should make sure they repeal, or don't pass in the first place, laws like California's.