Right of publicity vs. the First Amendment

FIRST & FOREMOST

This is the first installment of a monthly column from the attorneys at Jassy Vick Carolan about issues in media and First Amendment law called "First and Foremost." For our first column, we're going to get into the right of publicity. The 9th U.S. Circuit Court of Appeals' recent decision in Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016), is a potential game-changer for right of publicity law. The case stems from the Academy Award-winning film "The Hurt Locker." Plaintiff Jeffrey Sarver served in Iraq as an explosive ordinance disposal technician, and claimed "The Hurt Locker" was based on his life. Sarver sued various defendants involved in the film and alleged claims including violation of his right of publicity. Broadly speaking, the right of publicity prohibits the use of a person's name, likeness or persona for certain purposes - chiefly commercial and advertising - without that person's consent. There are a number of recognized defenses to right of publicity claims, including First Amendment-related defenses.

The 9th Circuit held that the First Amendment barred Sarver's right of publicity claim. By itself, that holding is unremarkable. Courts across the country routinely hold that the First Amendment bars right of publicity clams targeting expressive works like "The Hurt Locker." The reason is simple: If individuals had veto power over works mentioning or depicting them, they could censor public discourse. Imagine William Randolph Hearst being allowed to block "Citizen Kane," or Mark Zuckerberg having the right to put the kibosh on "The Social Network."

What makes the Sarver decision remarkable is how the court decided that the First Amendment barred the right of publicity claim. It held that right of publicity laws are subject to strict scrutiny because they are content-based restrictions on speech. Strict scrutiny is an extremely demanding constitutional test that virtually always results in upholding defendants' First Amendment rights in the face of civil claims and government regulations.

Although other courts have recognized right of publicity laws are subject to the First Amendment, they generally have relied on legal standards more amorphous and unpredictable than strict scrutiny. The result has been less protection for expressive works like "The Hurt Locker," and greater legal uncertainty for content creators. Different federal and state courts have utilized more than half a dozen different legal tests to reconcile the First Amendment with the right of publicity. There is a "transformative use" test, a "predominant purpose" test, the Rogers test (Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)), an "alternative avenues" test, a "newsworthiness" test, and an actual malice test, as well as ad hoc balancing tests defying easy categorization.

The result is jurisprudential mayhem. Some tests, such as the Rogers test, are predictably protective of defendants' free speech rights. Other tests, such as the transformative use test used in California, are less protective than Rogers and may require judges to make not just legal judgments, but aesthetic ones. The exact same set of facts can result in a quick and inexpensive dismissal in favor of the defendant, or in a multi-million-dollar jury verdict in favor of the plaintiff - all depending on where a case is brought and which test is applied. The incentives for forum-shopping are obvious. So are the chilling effects.

Sarver is potentially revolutionary because it sidesteps the half dozen-plus legal tests for balancing the right of publicity and the First Amendment, and instead relies on one of the first principles of traditional First Amendment jurisprudence: content-based restrictions on speech, including right of publicity laws, are subject to strict scrutiny.

However, Sarver is only potentially revolutionary. One of the most peculiar aspects of Sarver is that it comes on the heels of other 9th Circuit panels' decisions in In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 724 F.3d 1268 (9th Cir. 2013) (known as Keller) and Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015). Those decisions held that right of publicity claims by former college and professional athletes against the makers of videogames like "Madden NFL" could go forward. Those courts applied the transformative use test, held that the videogames were not sufficiently transformative, and never addressed whether right of publicity laws are content-based and subject to strict scrutiny under the First Amendment. Yet Sarver only mentioned Keller and Davis in passing, and glossed over the tension between those decisions and its own holding.

Some might say judges simply believe motion pictures, especially Academy Award-winning ones like "The Hurt Locker," deserve more protection than videogames. However, less than five years ago, the U.S. Supreme Court, in an opinion written by Justice Antonin Scalia, held that "like the protected books, plays, and movies that preceded them, video games communicate ideas - and even social messages - through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world)" and "[t]hat suffices to confer First Amendment protection."

So when might the divergence between Sarver and Keller be resolved? On April 22, the 9th Circuit denied Sarver's petition for panel rehearing and rehearing en banc. Although Sarver could now seek review by the Supreme Court, he should not hold his breath. The Supreme Court last ruled on a right of publicity case nearly 40 years ago, notwithstanding ensuing circuit splits and countless petitions for certiorari in the interim.

If the Supreme Court hears a right of publicity case soon, in Sarver or otherwise, a majority of the justices may find the simplicity and familiarity of strict scrutiny appealing. Recent Supreme Court decisions have been quite protective of First Amendment speech rights. Adopting Sarver's strict scrutiny rule would spare the justices from having to evaluate and debate the merits of the half-dozen competing legal tests that courts across the country have created, and could bring uniformity and predictability to right of publicity jurisprudence. It also might end the present state of affairs wherein something as fundamental as First Amendment rights can vary dramatically depending on where you get sued and what legal test the court hearing your case decides should apply.