News & Commentary

Professors File Brief Supporting Review of O’Bannon and Fixing Right of Publicity Mess

June 20, 2016 4:59 pm
NCAA right of publicity supreme court o'bannon lawsuit certiorari petition
Last week I filed an amicus brief co-authored by Eugene Volokh and signed on to by 28 Constitutional Law and Intellectual Property Law professors supporting the petition for certiorari in O'Bannon, and in particular calling for guidance on the conflict between the First Amendment and the right of...

Celebrity Chef Sues to Cancel Contract Transferring His Right of Publicity

June 13, 2016 11:07 pm
Kent rathbun v H2R Restaurant right of publicity lawsuit
Celebrity chef Kent Rathbun has sued to invalidate an assignment of his rights to the use of his name and likeness. Rathbun, a former contestant on Iron Chef America and a four-time James Beard-Award nominated chef from Dallas, objects to an onerous contract he signed with H2R Restaurant...

NCAA Petitions Supreme Court to Protect Uses of Athletes’ Names & Likenesses

May 24, 2016 4:42 pm
Obannon right of publicity supreme court petition
Last week, the NCAA filed a petition for certiorari with the Supreme Court in O'Bannon v. NCAA.  The bulk of the petition seeks to overrule the Ninth Circuit's decision that the NCAA rules requiring amateurism violate the Sherman Act and antitrust law.  Part of the petition also challenges...

Arkansas Resurrects Right of Publicity Bill

May 19, 2016 11:44 pm
The Arkansas legislature has reintroduced a right of publicity bill in the state after last year's bill was vetoed by its governor.  Governor Asa Hutchinson was concerned about the bill's limits on free speech.  Arkansas to date has only recognized a common law right of privacy and the...

Prince’s Death Sends Minnesota Legislature into Overdrive

May 10, 2016 4:12 pm
Prince right of publicity minnesota law post-mortem
Yesterday, the Minnesota legislature introduced a rushed bill to protect a right of publicity in that state and particularly to extend post-mortem rights in that state.  The bill came on the heels of the recent death on April 21st of the famous recording artist and composer Prince (aka...

Supreme Court Denies Review of Davis v. Electronic Arts

March 21, 2016 5:29 pm
Supreme Court right of publicity no review davis electronic arts
This morning the Supreme Court denied certiorari in Davis v. Electronic Arts, Inc.  This case from the Ninth Circuit rejected a First Amendment defense to right of publicity claims when the videogame Madden NFL depicted professional football players without their permission. I and many other intellectual property and...

Eighth Circuit Tosses NFL Players’ Lawsuit

February 26, 2016 9:59 pm
right of publicity john frederick dryer dryer v nfl eighth circuit
Today, the United States Court of Appeals for the Eighth Circuit affirmed a district court’s summary judgment against NFL players in Dryer v. NFL.  The underlying lawsuit involved objections by players to the use of their names and likenesses in NFL game footage and additional interviews in NFL-produced...

Ninth Circuit Tosses Hurt Locker Case

February 17, 2016 9:48 pm
Sarver hurt locker right of publicity case ninth circuit opinion out
Today the Ninth Circuit finally decided Sarver v. Chartier. The court affirmed the district court’s holding that the alleged use of Sergeant Jeffrey Sarver’s identity in the Academy-Award winning film The Hurt Locker is protected by the First Amendment. The ultimate holding that the use of a real...

PGA Can Use Caddies as “Human Billboards”

February 12, 2016 2:41 am
Caddy bibs from right of publicity complaint hicks v. pga
Earlier this week, a federal district court dismissed a right of publicity claim by golf caddies against the PGA. The caddies objected to being forced to wear bibs that advertise various tournaments, golfers, and third-party corporations. The complaint was filed in September 2015 as part of a move...

Actors Sues for Use of Performance in DVD

January 21, 2016 12:19 am
McCabe v. Entertainment One
Brian McCabe, an actor, has sued Entertainment One and Swirl Films for selling DVDs of Community Service, a television show, that he had agreed to appear in and that he knew would be televised.  McCabe claims that although he agreed to the airing of his performance on television,...