Hart v. EA: Are Publicity Rights in the Game?

September 16, 2011 by Rick Sanders | Category: Blawg, Blog | Tags: commercial speech, copyright, fair use, First Amendment, free speech, right of publicity, video games

Free Speech Sacks Publicity Rights (but Was it Offside?)

A few weekends ago I blogged about publicity rights in connection with a Vampire Weekend album cover.  One of my main points was that publicity rights are a lot like copyright, except that it’s a right held by the subject of a work, rather than by the work’s author.  Thus, when a work has a living (or in some states, dead) person as its subject, there can be two rights to worry about: copyright and publicity.  Publicity is the right to control representations of yourself; copyright is the right to control representations (OK, “expressions”) you make.

Team Publicity Rights vs. Team Free Speech

Publicity rights make intuitive sense.  If you’re a celebrity, even a local or minor one, people shouldn’t be able to use your likeness to make a buck.  That’s a market for you to control.  To this, we add a kind privacy or dignity sheen that arises (in my opinion) from the general feeling of discomfort we get when our likeness is shown to people outside our normal circle of family and acquaintances.  Intuitively, the scope of this privacy right changes depending on the intimacy of the portrayal:  … Read More»