The byzantine area of intellectual property law known as the “right of publicity” presents an underlying tension: the right of individuals to control the use of their names and images butting against the right of free expression. Created to prevent the advertisement of one’s name from unauthorized use in commercial settings, the right of publicity has since expanded through a multiplicity of state statutory law and/or court rulings that vary in scope, application and length of time. Right of publicity cases include a panoply of disputes by the famous and humble, resulting in complex rulings focusing on definitional questions, court-made tests and judicial dictum that has lacked consistency and sown lots of confusion.
Although the right of publicity involves speech, the application of First Amendment principles has also been haphazard, as courts have sometimes eschewed the strong presumption of constitutional protections in favor of finding protection to individuals’ proprietary interests. In the area of sports, one particularly troubling issue has been the use of an athlete’s name and statistical information in fantasy sports games without permission (translated: payment). Is this an appropriation of the name and image for commercial reasons? Is it the dissemination of newsworthy information? Is it constitutionally protected speech? These are important questions as we face the dawn of a new age of legalized sports gambling.
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