Professor Jennifer Rothman submitted an amicus brief along with UCLA Professor Eugene Volokh supporting en banc review by the Ninth Circuit in Davis v. Electronic Arts, a case involving the right of publicity.
SUMMARY OF ARGUMENT
The panel decision in this case followed the majority opinion inIn re NCAA Student-Athlete Name & Likeness Licensing Litigation (“Keller v. Electronic Arts”), 724 F.3d 1268 (9th Cir. 2013)(commonly known as Keller), which defines thisCircuit’s law on the right of publicity and the First Amendment. No petition for rehearing en banc was filed in Keller, so this is the first clear opportunity for the entire Circuit to consider whether Kelleris correct.
Keller’s conclusion that references to real players in fantasy sports video games are not protected by the First Amendment is mistaken, and dangerously so. The Keller majority begins with the sentence, “Video games are entitled to the full protections of the First Amendment, … ‘[l]ike the protected books, plays, and movies that preceded them[.]’” 724 F.3d at 1270-71 (quotingBrown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011)). It therefore follows that, to the extent video games may infringe the right of publicity for depicting or referring to real people, so may books, plays, songs, and films.
Thus, under the logic of Keller, the makers of the recent filmSelma might be liable for a host of right of publicity violations unless they got permission from Coretta Scott King, Andrew Young, John Lewis, Harry Belafonte, and the heirs of Martin Luther King, Jr., J. Edgar Hoover, Lyndon Johnson, and others. The Academy Award-winning Forrest Gump might also have infringed historical figures’ right of publicity unless the filmmakers got permission from the Elvis Presley, John Lennon, and Abbie Hoffman estates. Simon & Garfunkel’s Mrs. Robinson, which asked “Where have you gone, Joe DiMaggio?,” might have infringed Joe DiMaggio’s right of publicity.
Likewise, the Faulkner estate’s recent lawsuit over the use of Faulkner’s name in Midnight in Paris could have succeeded.See Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., 953 F. Supp. 2d 701, 713 (N.D. Miss. 2013) (noting estate’s claim for “commercial misappropriation” — here another label for the right of publicity — and declining supplemental jurisdiction over claim). Jeffrey Sarver’s lawsuit against the producers of the movie The Hurt Locker for evoking his identity as a member of an army bomb squad in Iraq could likewise have succeeded. See Sarver v. Hurt Locker LLC, 2011 WL 11574477, at *6-*7 (C.D. Cal. 2011) (granting anti-SLAPP motion to strike right of publicity claim), appeal pending, Nos. 11-56986, 12-55429; see also Tyne v. Time Warner Entm’t Co., L.P., 901 So. 2d 802 (Fla. 2005) (rejecting similar claim as to film The Perfect Storm).
Fortunately, the law does not require such results. The Ninth Circuit is, of course, not bound by a state court’s interpretation of the First Amendment; but even under the California Supreme Court’s “transformative work” test, all these works, including the fantasy football video games involved in Kellerand in this case, are constitutionally protected. Likewise, under the two other First Amendment tests commonly applied by federal courts to the right of publicity — the Second Circuit’s test inRogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), and the Eighth Circuit’s test in C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, 505 F.3d 818 (8th Cir. 2007) — all these works, including the fantasy sports games, are constitutionally protected. And the logic of this Court’s decision in Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013), which holds that such works are protected from trademark law claims, counsels in favor of the same result in right of publicity cases.
The conclusion that the First Amendment does not protect depictions of real people in expressive works, whether in fictional or non-fictional settings, cannot be right. Yet this is the world that the panel decisions in Davis and Kellerrisk creating. Whether to preserve, reverse, or modify the circuit law created by Kellerthus merits this Court’s en banc attention — especially since this Court is the “Court of Appeals for the Hollywood Circuit,” White v. Samsung Electronics Am., 989 F.2d 1512, 1521 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc), and for the Silicon Valley Circuit as well.