Thursday, August 01, 2013

Ninth Circuit issues confusing ruling in important Right of Publicity case, disturbing precedent

Electronic Frontier Foundation is reporting on a disturbing ruling from a 3-judge panel in the Ninth Circuit that seems to strengthen celebrity claims in “right of publicity” cases when there is additional state law to back up the celebrity. 

The specific case involved a video game from Electronic Arts whose digital avatar apparently too closely resembled college football player Sam Keller (mentioned here June 3, 2013 and Nov. 16, 2010). 

On the other hand, in another case called Brown v. Electronic Arts, the same Circuit appealed to the Lanham Act to in favor of the defendant.
“Right of publicity” law is somewhat derived from other areas (like privacy and copyright) and has a “transformation” test but no “fair use” doctrine.

The EFF’s article (by Daniel Nazer), link suggests that the Keller ruling would mean that the popular movie “The Social Network” would have indeed infringed on Mark Zuckerberg’s “right of publicity”.

There’s another disturbing question.  Who decides, what is a celebrity?  Is it making enough money from your public work?  Is it having enough Facebook friends or like? (that is, Likeonomics).  
Could I claim a right of publicity if I needed to, based on my own writings about DADT and COPA?   Or is the ability to make a living off of “Fame” a critical concept?  Maybe this is a good question for a “” video.  

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