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

By Jennifer E. Rothman
June 20, 2016

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 publicity.

As I have written, O'Bannon v. NCAA is a Ninth Circuit decision from last September that applied antitrust law to the NCAA and its treatment of student-athletes.The case has a number of implications for right of publicity law. The decision rests in part on a conclusion that the players' names and likenesses have commercial value, particularly in the context of videogames and the alleged licensing of such names and likenesses by the NCAA.  The NCAA's petition for certiorari contends that the antitrust issue rests entirely on the conclusion that these names and likenesses are valuable and that the uses of the players' identities in Electronic Arts' and similar videogames required licensing.

Because we contend--as we did in our amicus in Davis v. Electronic Arts--that such realistic depictions of athletes in videogames is protected by the First Amendment, such uses do not require licensing or payment.

O'Bannon, in contrast to Davis, does not have the procedural baggage of the anti-SLAPP motion and the contested issue of whether federal courts could decide such cases.  O'Bannon is therefore a better vehicle for considering the question of how courts should analyze First Amendment defenses to right of publicity claims. There is no doubt that it is long past time for the Supreme Court to provide guidance on this question, and this is an opportunity to consider the issue in a case that has a developed factual record.  

Nevertheless, it would not be my pick for the ideal case as the antitrust issues add an extra layer of complexity, and the student-athletes are sympathetic. As I have written elsewhere, many student-athletes have been taken advantage of by the NCAA and the NCAA should not get broad control over the players' identities. There is also little doubt that the players' identities do have commercial value, even if the licensing of those identities is not required for the videogames involved in the case.

Despite these challenges for the case, if the antitrust analysis rests on the conclusion that the use of the players' identities in videogames, like those put out by Electronic Arts, must be licensed, then the decision cannot stand. The athletes and their performances in the games are public information that should be able to be described in a non-exploitative fashion for news reporting, commentary, and for entertainment. If the atheletes' images, names, and biographies were used in a movie or book in a manner similar to that of the videogames there is little doubt that such uses would be protected by the First Amendment. The same should hold true in the context of videogames.

One cannot always find or pick the perfect case for review, but this case provides an opportunity that we cannot let pass. Hopefully, the Supreme Court will grant review of this case or another one soon so that it can provide clear limits on the ever-growing right of publicity, and shed light on when it yields to the First Amendment. 

Amicus Brief of 28 Constitutional Law and Intellectual Property Law Professors as Amici Curiae in Support of NCAA Petition in O'Bannon