Hollywood’s studios and guilds are weighing in on opposite sides of a case that could further define the rights of personalities to prevent the unauthorized use of their likenesses in movies, TV shows and other media.
On Tuesday in Pasadena, a three-judge federal appellate panel heard arguments in a suit brought by former U. of Nebraska quarterback Samuel Keller against Electronic Arts, which used his likeness and that of other players in the vidgame “NCAA Football.” The Ninth Circuit Court of Appeals is considering whether to uphold or overturn U.S. District Judge Claudia Wilken’s refusal to dismiss the lawsuit on First Amendment grounds.
Although the case has to do with a videogame, Hollywood’s studio lobby says that it stands to have an impact on the ability of content creators to include real-life figures in their storylines.
In an amicus brief filed in the case, attorneys for the Motion Picture Assn. of America wrote that the fear is that Wilken’s decision “may be used by publicity rights plaintiffs to censor, prohibit or otherwise chill valid creative expression that utilizes names and/or likenesses of public persons.”
They say Wilken “misapplied” the test that has been used to balance whether a right to publicity trumps freedom of speech, with courts granting greater First Amendment protection to works that “transform” the image of a persona. The MPAA says she failed to consider the player’s image in context and that “this unduly limited focus gives rise to a serious risk that a motion picture containing the name and/or ‘realistic’ likeness of a public person who has not authorized that usage … may be subject to publicity rights liability.”
But a coalition of guilds and unions, including SAG, AFTRA, the WGAW and the AFL-CIO, are siding with Wilken’s interpretation. They filed an amicus brief along with heirs to John Steinbeck, Bob Marley and the licensing org Luminary Group, which reps deceased personalities. “EA’s infringing use of the athletes’ personas is tantamount to stealing and opens the door for others to freely circumvent the statutory and common law right of publicity to any individual in the future,” the guilds and unions said in their brief.
“In this case, they seek to use the First Amendment as both a shield and a sword to pilfer the treasure in individuals’ personas,” they said, adding that “each case warrants review on its own merit and that “for over a century, courts have founds ways to strike a fair balance” between free speech and the right to publicity.