A New First Amendment Goal Line Defense – It's Time to Stop the Right of Publicity Offensive

Abstract

The licensing agreements involving the NCAA and digital video firms for the use of avatars that have some resemblance to former college players have resulted in three separate cases challenging the validity of those agreements and the uses of athlete likenesses. O’Bannon v. NCAA, Hart v. EA and Keller v. NCAA. Although O’Bannon has received the most publicity and involves potentially viable antitrust issues, the other two cases -- although less publicized -- may have significant effect on the future and scope of the law of the right of publicity. It is my contention that the use of the right of publicity doctrine to address the inequities between college athletes and the NCAA is incorrect and the gradual expansion of the scope of the property right creates serious First Amendment concerns. The article proposed a nationalized test for right of publicity claims that will pre-empt the myriad tests creates by different courts in different jurisdictions into a qualified immunity standard based on commercial speech protections under the First Amendment. Simply put, parties claiming right of publicity would have to establish a direct commercial use of their name, image and likeness to defeat a presumption of constitutional protection in the use of such speech.