No Doubt About it – You've Got to Have Hart: Simulation Video Games May Redefine the Balance between and Among the Right of Publicity, the First Amendment, and Copyright Law

43 Pages Posted: 21 Aug 2016

See all articles by Jordan "Jody" Blanke

Jordan "Jody" Blanke

Mercer University - Stetson-Hatcher School of Business

Date Written: December 18, 2012

Abstract

A few recent cases involving simulation video games have highlighted the difficulty of balancing the right of publicity with First Amendment rights. Courts have struggled to develop a definitive test because, among other things, there is significant variation in state right of publicity laws. Courts have experimented with different tests to try to balance the often-competing rights and interests. One of the most popular tests is the “transformative test,” which, fittingly, originates in the copyright doctrine of fair use—a doctrine that itself has a long history of conflict and coexistence with the First Amendment. I examine the history of the right of publicity, and I attempt to apply the various balancing tests in the context of simulation video games. I argue that courts must use a test that, first and foremost, places great weight on First Amendment expression. I also look at the future of efforts to balance competing interests between not only the right of publicity and the First Amendment, but also with copyright law.

Keywords: Right of publicity, First Amendment, copyright law, transformative test

JEL Classification: K13, K39

Suggested Citation

Blanke, Jordan M., No Doubt About it – You've Got to Have Hart: Simulation Video Games May Redefine the Balance between and Among the Right of Publicity, the First Amendment, and Copyright Law (December 18, 2012). Boston University journal of Science and Technology Law, Vol. 19, No. 1, 2013, Available at SSRN: https://ssrn.com/abstract=2826694

Jordan M. Blanke (Contact Author)

Mercer University - Stetson-Hatcher School of Business ( email )

United States
6785476313 (Phone)

HOME PAGE: http://ssbea.mercer.edu/blanke

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
57
Abstract Views
371
Rank
659,215
PlumX Metrics