The right of publicity finds itself increasingly threatened by the First Amendment. Recent decisions at both the state and federal levels have served to highlight the confusion and lack of uniformity. For example, the Ninth Circuit recently held that an artist could not sell T-shirts with a charcoal drawing of the Three Stooges without permission, yet shortly thereafter the Sixth Circuit rejected Tiger Woods' attempt to prevent an artist from selling a painting of him winning a golf tournament, on essentially the same grounds. The author argues that the right of publicity and the First Amendment can co-exist, but that a new test is needed to help courts determine how much protection is too much protection. By borrowing from the existing doctrines of intellectual property and crafting a test that is geared towards protecting free speech, but not at the cost of eliminating the right of publicity, a four factor test is proposed that should provide all parties with a much needed dose of stability.
Jason K. Levine,
Can the Right of Publicity Afford Free Speech - A New Right of Publicity Test for First Amendment Cases,
27 Hastings Comm. & Ent. L.J. 171
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol27/iss1/5