Ad Hoc Balancing - CA statute grants right of publicity to specified successors in interest of deceased celebrities, prohibiting any other person from using a celebrity’s persona; Cannot abridge free speech; Balancing test between 1st amendment & RoP based on whether the work in question adds significant creative elements so as to be transformed into something more than a celebrity likeness or imitation; No creative elements here; When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist; When artist is faced with a right of publicity challenge to his work, he may raise an affirmative 1st amendment defense if it contains transformative elements or if the value did not derive from the celebrity’s fame; Granted statutory right to heirs of celebrities the property right to exploit the celebrities’ images; The certain forms of expressive activity protected by the 1st amendment fall outside the boundaries of that right; Keller et. al v. Electronic Arts Transformativeness Test - Game is not transformative; Portrays P doing same activity by which they achieved fame; Hart achieved same result; Rejects Rogers Test for right of publicity; Rejects matter in the public interest (CL) & News and Public affairs (statutory) exclusions; (Game not a reference source; Portrays P doing same activity by which they achieved fame; (like No Doubt); Use 5 factors For Transformativeness test: Raw material vs. Sum & substance; Primarily Ds own expression, not just likeness; Quantitative; Do imitative or creative elements predominate; Marketability/Economic value: fame/celebrity or artistic expression; Conventional portrait or artists skill/talent; Strong dissent: Should view game as a whole – interactive Historical fiction; Applying same test and cases would find game to be protected speech; Transformative; Doe v. McFarlane Predominant Purpose Test - Is the predominate purpose to exploit the commercial value of the persona or to make expressive comment about the celebrity? Very favorable to name/likeness claimants;
Ad Hoc Balancing - CA statute grants right of publicity to specified successors in interest of deceased celebrities, prohibiting any other person from using a celebrity’s persona; Cannot abridge free speech; Balancing test between 1st amendment & RoP based on whether the work in question adds significant creative elements so as to be transformed into something more than a celebrity likeness or imitation; No creative elements here; When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist; When artist is faced with a right of publicity challenge to his work, he may raise an affirmative 1st amendment defense if it contains transformative elements or if the value did not derive from the celebrity’s fame; Granted statutory right to heirs of celebrities the property right to exploit the celebrities’ images; The certain forms of expressive activity protected by the 1st amendment fall outside the boundaries of that right; Keller et. al v. Electronic Arts Transformativeness Test - Game is not transformative; Portrays P doing same activity by which they achieved fame; Hart achieved same result; Rejects Rogers Test for right of publicity; Rejects matter in the public interest (CL) & News and Public affairs (statutory) exclusions; (Game not a reference source; Portrays P doing same activity by which they achieved fame; (like No Doubt); Use 5 factors For Transformativeness test: Raw material vs. Sum & substance; Primarily Ds own expression, not just likeness; Quantitative; Do imitative or creative elements predominate; Marketability/Economic value: fame/celebrity or artistic expression; Conventional portrait or artists skill/talent; Strong dissent: Should view game as a whole – interactive Historical fiction; Applying same test and cases would find game to be protected speech; Transformative; Doe v. McFarlane Predominant Purpose Test - Is the predominate purpose to exploit the commercial value of the persona or to make expressive comment about the celebrity? Very favorable to name/likeness claimants;
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