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
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: Suggested Citation