The First Amendment states, in part, that Congress shall make no law…. abridging the freedom of speech, or of the press.
Historically, the initial concern was, arguably, censorship by the government, even though the constitutional framers actively suppressed the very same, as an example, in the form of the Alien and Sedition Act of 1798, which, in the wake of the French Revolution, restricted speech critical of government. [1] Nevertheless, the right of free speech and press was codified in The Bill of Rights, [2] and has since manifested itself as certain (but not unlimited) rights of protected speech, including two specific cornerstones: 1) advancing knowledge and the search for truth by fostering a free marketplace of ideas and an “uninhibited, robust, wide-open debate on public issues; and 2) fulfilling the human need for self-expression and self-realization.[3]

Contrastingly, the right of publicity has been on a collision course with the First Amendment from the start. As Gloria Franke points out in a fine Southern California Law Review article, The Right of Publicity vs. The First Amendment: Will One Test Ever Capture the Staring Role, our founding fathers (the same who ratified the First Amendment) recognized the value in their own fame, but chose to give it away freely.[4] 

Franke reasons that it was the advent of the newspaper industry in the 1800s and a “names make news” formula, perfected by the likes of William Randolph Hearst and Joseph Pulitzer, that awakened America to the idea of capitalizing on an individual’s fame. But that same exploitation lead to abuse and to a right of privacy, recognized in Pavesich v. New England Life Insurance Co.[5] where an artist’s photograph appeared with an unauthorized advertisement. 

From there, a modern right of publicity was advanced in 1953 in Haelan Labs. V. Topps Chewing Gum, Inc.[6] in which Judge Jerome Frank wrote

“…. in addition to and independent of that right of…. a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made 'in gross,' i.e., without an accompanying transfer of a business or of anything else.” 

Since Haelan, most states have recognized the right of an individual to capitalize on their fame (a right of publicity), but have done so without uniform legal test(s). This is one of the most significant issues underlying Keller v. Electronic Arts[7]

[1] http://www.loc.gov/rr/program/bib/ourdocs/Alien.html
[2] The first Bill of Rights was ratified as Constitutional Amendments on December 15, 1791.
[3] Roberta Rosenthal Kwall, Fame, 73 IND. L.J. 1 (1997), as discussed in Southern California Law Review: The Right of Publicity Vs. The First Amendment: Will One test Ever Capture the Starring Role: http://weblaw.usc.edu/why/students/orgs/lawreview/documents/Franke_Gloria_79_4.pdf
[4] Id. For a great discussion on this topic, see Southern California Law Review: THE RIGHT OF PUBLICITY VS. THE FIRST AMENDMENT: WILL ONE TEST EVER CAPTURE THE STARRING ROLE?: 
[5] Pavesich v. New Eng. Life Ins. Co., 50 S.E. 68, 74 (Ga. 1905).
[6] See: Marquette University Law School: Baseball cards and the Birth of the Right of Publicity http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1156&context=facpub; also see Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953).

(7) http://dlr-law.com/3/post/2013/01/countdown-the-5-most-influential-video-game-lawsuits-of-2012-4-of-5-keller-v-electronic-arts.html

 


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