Written By: Andrew Sensi
In the past few years several lawsuits have been initiated by former collegiate athletes seeking compensation for the alleged use of their likenesses in video games and other products licensed by the National Collegiate Athletic Association ("NCAA") and its member institutions. From lesser known athletes such as Sam Keller and Ryan Hart, to well-recognized athletes such as Oscar Robertson, Ed O'Bannon and Bill Russell; former student athletes have alleged various violations of their right of publicity. Sam Keller and Ryan Hart's claims stem from the video game series NCAA Football produced by Electronic Arts ("EA"). Likewise, Bill Russell's claim stems from EA's alleged use of his image in an NCAA basketball video game. Meanwhile, Oscar Robertson and Ed O'Bannon claim that the NCAA, EA and the Collegiate Licensing Company ("CLC") have (1) conspired to fix prices for the use and sale of their images at zero dollars, and (2) engaged in a group boycott by requiring student athletes to relinquish publicity rights in perpetuity.
This post is the first of several which will examine the history of the right of publicity, the justifications for and criticisms of the law, along with the potential success or failure of these recent suits. This post will focus on defining the right of publicity, and tracing its history.
The right of publicity is "the inherent right of every human being to control the commercial use of his or her identity," and until recently was generally successful in securing to persons the commercial value of their identities. In general, the elements of a right of publicity claim are (1) use of a person's identity, (2) for a commercial purpose, (3) without their consent. The term identity is broad and includes, but is not limited to a person's name, nickname, photograph, voice, likeness, and persona. Two commonly asserted defenses to a right of publicity claim are copyright preemption and the First Amendment.
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