June 2014 Vol. 112 No. 8 THE REVIEW

Fumbling the First Amendment: The Right of Publicity Goes 2–0 Against Freedom of Expression

Thomas E. Kadri

Two circuits in one summer found in favor of college athletes in right-of-publicity suits filed against the makers of the NCAA Football videogame. Both panels split 2-1; both applied the transformative use test; both dissenters predicted chilling consequences. By insisting that the likeness of each player be "transformed," the Third and Ninth Circuits employed a test that imperils the use of realistic depictions of public figures in expressive works. This standard could have frosty implications for artists in a range of media: docudramas, biographies, and works of historical fiction may be at risk. This Comment examines the tension between the right of publicity and the First Amendment and argues for a bright-line test that ensures greater protection for creators of expressive works.

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