The right of publicity and the First Amendment in the modern age of commercial speech.
Moving down the hierarchy of protection, we confront "expressive" speech, which is subject to various balancing tests to determine its First Amendment worth relative to publicity rights. The evolution of courts' sloppy and often inconsistent tests for weighing the right of publicity and First Amendment rights can be traced back to the United States Supreme Court decision in Zacchini v. Scripps-Howard Broadcasting Co. (133) In a unique set of facts, petitioner, Hugo Zacchini, sought damages from a television station which broadcasted his human cannonball act, a fifteen second performance in which he was shot from a cannon into a net roughly two-hundred feet away. (134) The Ohio Supreme Court held that the First Amendment privileged the broadcast as a matter of public interest. (135) The United States Supreme Court, however, rejected this view:
Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent.... The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance. (136)
In other words, the Court recognized that the television station, without compensating Zacchini, reproduced the entire narrative giving value to his performance--beginning, middle, and end--thereby removing it from the scope of First Amendment protection. But the Supreme Court did not clearly articulate the limitation of the public interest exception in this case, nor did the Court clearly explicate a test for measuring future conflicts between publicity rights and the First Amendment. Instead, the Court decided Zacchini narrowly on the "entire act" conception and suggested that relevant interests should be weighed, providing more confusion than clarity for lower courts. (137) After Zacchini, several analytical frameworks have taken shape across federal and state courts to perform the balancing inquiry Zacchini seemingly demanded, including (1) the Transformative Use Test, (2) the Predominant Use Test, and (3) the Rogers Test.
1. Transformative Use Test
The Transformative Use Test, formulated by the California Supreme Court, weighs publicity rights and First Amendment interests by asking whether the use "adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation." (138) Only a transformative use can outweigh the interests of a person asserting his publicity rights, the court noted. (139) "[W]hen a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interests protected by the right of publicity." (140) In devising the defense, the court emulated copyright law. (141) According to the court, copyright law was an apt body from which to draw because "both the First Amendment and copyright law have a common goal of encouragement of free expression and creativity, the former by protecting such expression from government interference, the latter by protecting the creative fruits of intellectual and artistic labor." (142)
Courts subsequently applying the California Supreme Court's Transformative Use Test have relied on at least five factors in determining whether a use is sufficiently transformative to obtain First Amendment protection. (143) They have looked to whether: (1) the celebrity likeness "is the very sum and substance of the work," (2) the work is the artist's creative expression, (3) the imitative elements predominate in the work, (4) the economic value is derived primarily from the celebrity's fame, and (5) the overall goal is to exploit a celebrity's fame. (144) On this basis, they have rejected as not sufficiently transformative t-shirts bearing a likeness of The Three Stooges, (145) video game avatars closely based on real singers, (146) college football players, (147) and a birthday card that mimicked a celebrity. (148) Yet, they have deemed as transformative comic book caricatures of celebrities (149) and video game avatars only apparently loosely based on real people. (150)
The exact relationship between this Transformative Use Test and a more general First Amendment defense is confusing, to say the least, because courts still reference the profit motivation inherent in the speech when they determine its worth. For example, when the Ninth Circuit in Hoffman v. Capital Cities/ABC, Inc. afforded full First Amendment protection, it conducted a traditional speech analysis and found that the speech at issue was "entitled to the full First Amendment protection awarded [to] noncommercial speech." (151) Although Hoffman addressed the Transformative Use Test in a footnote, it suggested that the test was inapplicable because the speaker in Hoffman was a magazine, not an artist. (152)
When the Los Angeles Superior Court afforded full First Amendment protection to the Call of Duty video game's use of an avatar resembling Manuel Noriega, it downplayed the video game company's economic interest on its way to finding the speech protected over the publicity right at issue. (153) In this way, the transformative use analytical framework operates as yet another means for elbowing out speech that is primarily commercially motivated in the traditional sense. The test offers a means for elevating only that profit motivated speech that has been creatively altered to the court's liking. (154)
2. Predominant Use Test
The Predominant Use Test is less opaque about its intent to exclude protection for commercial speech. First articulated by the Missouri Supreme Court, the Predominant Use Test balances the rights at issue by distinguishing uses that predominantly exploit the commercial value of a celebrity's fame from uses that make expressive comments. (155) The court drew the language of the test from intellectual property litigator Mark Lee's law review article, in which he defended such an approach as "do[ing] justice to both the expressive and property interests" by protecting the "intellectual property that is being exploited by others" and permitting creative expression that makes meaningful comments. (156) The Missouri Supreme Court, sitting en banc, applied this test to find that the makers of a comic book used a hockey player's name predominantly in "a ploy to sell comic books and related products rather than an artistic or literary expression." (157) Under these circumstances, according to the court, "free speech must give way to the right of publicity." (158) The Missouri test constitutes an extremely problematic application of the public interest exception because its singular focus is profit motivation. If the predominant purpose of the speech is something other than conveying a judicially accepted expression, it receives no First Amendment protection.
Perhaps that is why courts have rejected opportunities to employ the Predominant Use Test, even levying sharp criticism in its direction. (159) The Third Circuit described the test as "subjective at best, arbitrary at worst, and in either case calls upon judges to act as both impartial jurists and discerning art critics." (160) The Eastern District of Missouri managed to sidestep the test entirely in a subsequent case applying Missouri law. (161)
3. The Rogers Test
In contrast to the Predominant Use Test, the Rogers Test looks to the relationship between the celebrity image and the use of the celebrity's identity as a whole. (162) Also called the Relatedness Test or the Restatement Test, (163) the test's namesake case involved danceractress Ginger Rogers's suit against the producers and distributors of a film called Ginger and Fred for infringing her right of publicity and for violating the Lanham Act. (164) In Rogers v. Grimaldi, the Second Circuit dismissed Rogers's right of publicity claim because the title of the film was "clearly related to the content of the movie and [was] not a disguised advertisement for the sale of goods and services or a collateral commercial product." (165) The Sixth Circuit, in applying the Rogers Test in a subsequent decision, linked the thrust of its relatedness inquiry to the Restatement (Third) of Unfair Competition. (166) Like the Rogers Test, the Restatement frowns upon exploitative uses of celebrity identity. Under the Restatement, "use of a person's identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses" does not amount to a prohibited use, (167) but using a celebrity's identity "solely to attract attention" to something unrelated to that person can subject the user to liability. (168)
Recent evaluations of the Rogers Test, including the Third and Ninth Circuits' evaluations, have opted not to apply it in the context of publicity rights claims because of its perceived misplaced goal: protecting the consumer from confusion, rather than protecting the celebrity. (169) Although these recent cases are trending more towards the Transformative Use Test, the lack of clarity regarding the nature in which constitutional First Amendment rights are balanced against celebrities' pecuniary interests in publicity rights remains troubling.
C. Commercial Speech as a First Amendment Defense?
Up to this point, we have dicussed the most common First Amendment defenses for escaping liability when speakers are accused of infringing on publicity rights. (170) Yet, one defense is clearly absent from the discussion. Whether resulting from defendants' uneasiness in confronting statutory and common law animosity toward commercial speech, or resulting from their sheer ignorance of the modern version of the commercial speech doctrine, defendants are not looking to commercial speech arguments to protect their free expression rights. (171) Rather, defendants tout their speech's expressive value and ask courts to characterize it as noncommercial. (172) And courts are often willing to find speech to be noncommercial, usually with seemingly little analysis. In fact, the paucity of judicial decisions applying the Supreme Court's famed four-part Central Hudson test to determine the appropriate protection for speech relative to publicity rights claims is astounding. (173) Until very recently, courts in near universality avoided analyzing the juncture of commercial speech and publicity rights altogether. (174) Chief Judge Alex Kozinski poignantly characterized courts' circumvention of binding Supreme Court precedent in his dissent in White v. Samsung Electronics, the case regarding Vanna White. (175) "The Supreme Court didn't set out the Central Hudson test for its health," he wrote. (176) Furthermore, he stated:
Maybe applying the test would have convinced the majority to change its mind; maybe going through the factors would have shown that its rule was too broad, or the reasons for protecting White's "identity" too tenuous.... But we should not thumb our nose at the Supreme Court by simply refusing to apply its test. (177)
As the following Part will demonstrate, modern First Amendment jurisprudence not only demands that courts apply Central Hudson; it also prescribes a number of normative and doctrinal ways in which commercial speech-based arguments should invalidate publicity rights claims.
III. ADDING A COMMERCIAL SPEECH PERSPECTIVE: WHAT THE MODERN LAW OF COMMERCIAL SPEECH TELLS US ABOUT THE RIGHT OF PUBLICITY, AND VICE VERSA
At the outset of our First Amendment analysis, we should make clear what we are not saying. We are not claiming that the First Amendment protection of commercial speech categorically and absolutely supersedes the right of publicity. In situations such as the one involved in Zacchini, for example, (178) it is reasonable to believe that the competing free speech interest--whether in the form of commercial or noncommercial speech--should give way. Determining exactly when the commercial speech right does or does not take precedence over the right of publicity is beyond the scope of our analysis. All we are claiming is that for a variety of reasons, at least when truthful commercial speech is involved, the commercial speech interest should receive the same level of First Amendment protection afforded to traditionally protected noncommercial speech.
The results in modern publicity rights cases do not always reflect this conclusion. If there is one recurring theme in publicity rights law, it is that courts accommodate First Amendment interests for so-called "newsworthy" uses of names or likenesses, but routinely and summarily penalize purely commercial uses as violations of the victims' common law or statutory rights. Such summarily negative treatment of commercial speech, however, appears more suited to the constitutional law of forty years ago than it does to today's First Amendment world. In the period since the Supreme Court first provided a significant level of constitutional protection to commercial speech, (179) the degree of commercial speech protection has grown exponentially. Indeed, the government has failed to win a single case involving a challenge to governmental suppression of commercial speech at the Supreme Court in over twenty years. And in that time, the Court has imposed substantial limitations on governmental power to control commercial expression. (180) One would think that at the very least, courts acting in the second decade of the twenty-first century would be far less negatively cavalier in their treatment of commercial speech than they have consistently been in expounding the law of the right of publicity. (181) As we shall demonstrate, simply applying well-established commercial speech doctrine would present enormous problems for such summary exclusion, and as a result, would necessarily alter existing law.
Even more importantly, applying current commercial speech theory to the current law of the right of publicity underscores important defects in the entire basis of that theory. Despite the fact that commercial speech today receives significant First Amendment protection, the level of that protection is undoubtedly distinctly lower than the level of protection extended to noncommercial speech. (182) Yet, application of the foundational theory of modern commercial speech doctrine to the right of publicity underscores the starkly irrational nature of the rationale for such reduced protection. Simply put, commercial speech receives reduced protection for no reason other than the profit motivation behind it. (183) As established publicity right doctrine demonstrates, however, equally profit-motivated speech--that of commercially driven media, which does not directly promote purchase of a particular commercial product or service--receives full First Amendment protection. Thus, the intersection of publicity rights with modern commercial speech law tells us a great deal about both the right of publicity and the current state of commercial speech protection. On the one hand, this intersection reveals that commercial speech protection--even in its current doctrinal form--presents a far greater problem for the right of publicity than courts enforcing that right currently understand. Commercially motivated right of publicity claims cannot so easily overcome commercial First Amendment protection. (184) On the other hand, by applying commercial speech doctrine to the right of publicity, we are able to highlight the fundamental flaws underlying reduced protection for commercial speech in the first place.
In developing these theoretical arguments, we in no way purport to resolve all conceivable conflicts between the right of publicity and the First Amendment. As Zacchini illustrates, not even the traditional media are constitutionally insulated from all liability under the right of publicity, (185) and we take no position on the correctness of those decisions. Our goal, rather, is to justify a type of "most favored nation" status for commercial invasions of the right of publicity: whatever level of First Amendment protection that traditionally protected media would receive for infringing the right of publicity, commercial advertisers should be deemed equally protected.
In this Part, we use as our hypothetical baseline a very limited form of a publicity rights violation: a commercial advertiser's use--without permission from the individual in question--of an individual's name and/or likeness to truthfully inform the public that that individual uses the advertiser's product. To be sure, under current law such a commercial advertisement would constitute a constitutionally unprotected violation of either common law or statutory rights of publicity. But we seek to distinguish it, for First Amendment purposes, from a variety of other hypothetical violations of publicity rights: appropriation of another's commercial work product as in Zacchini, (186) a knowingly or recklessly false assertion about an individual, and any violation of an individual's physically defined privacy (for example, photos secretly taken in traditionally private areas). We make no claims for First Amendment protection in any of these contexts. We believe that, as a matter of both normative First Amendment theory and accepted First Amendment doctrine, the constitutional guarantee of free expression should trump any assertion of a right of publicity in our baseline situation.
We first consider the fundamental theoretical flaws in the commercial speech doctrine's definitional divide between commercial and noncommercial expression, and we apply that critique to the right of publicity context. We then consider how the right of publicity fares under existing commercial speech doctrine. We conclude that to the extent that commercial speech doctrine supports a reduced level of First Amendment protection for truthful commercial advertising, the existing doctrine is grounded in categorically insupportable rationales and must be rejected in favor of a more principled basis of constitutional analysis. We further conclude that even if we are to suspend disbelief and assume the validity of the current constitutional framework, the way in which publicity rights doctrine summarily rejects First Amendment protection for commercial speech is constitutionally improper, purely as a doctrinal matter.
A. Profit Motivation and the First Amendment: The Flawed Theoretical Foundation of the Commercial Speech Doctrine
1. Evaluating Rationales for Stratifying Speech
As already demonstrated, under well-established publicity rights doctrine, a sharp line divides prima facie violations by commercial advertisers from prima facie violations by traditionally recognized media. (187) It is black letter law that prima facie violations by traditional media are protected in most cases, if not directly by the First Amendment, then by a First Amendment-inspired common law or the statutory "newsworthiness" privilege. (188) Commercial advertisements, by comparison, are automatically vulnerable to liability, receiving neither First Amendment nor common law protection. (189) Although this stark division ignores the substantial level of First Amendment protection currently afforded to classic commercial speech, (190) in the generic sense this stratification in protection levels accurately reflects a dichotomy firmly established in the Supreme Court's First Amendment jurisprudence.
After the Supreme Court first extended First Amendment protection to commercial advertising in 1976, (191) it made clear that commercial speech is deserving of only "a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values." (192) Under the four-part Central Hudson test, (193) at least in the early years of its application, (194) the Court was able to condone numerous restrictions on commercial speech that would almost certainly have been deemed impermissible in the world of noncommercial speech protection. (195) Thus, even though publicity rights doctrine pervades an almost cavalier dismissal of commercial speech that strangely and incorrectly understates even its most modest level of First Amendment protection in the post-Virginia State Board era, (196) courts enforcing publicity rights are surely accurate in their stratification of First Amendment concern on the basis of context. This stratification occurs when courts consider whether the alleged violation appears in a commercial advertisement promoting sale or in a more traditional medium of expression, such as a book, newspaper, or television or radio program. What makes no sense purely as a matter of First Amendment theory, however, is the stratification itself. In this sense, applying the commercial speech doctrine to the right of publicity tells us considerably more about problems with the commercial speech doctrine than it tells us about problems with the right of publicity.
In light of the Supreme Court's established definition of commercial speech as speech that "does no more than propose a commercial transaction," (197) understanding the logic implicit in the Court's commercial/noncommercial distinction requires employing a process of reverse engineering. We need to glean from the distinction some principled basis, grounded in acceptable premises of free speech theory, that justifies the protective dichotomy the Court has drawn between commercial and noncommercial expression. Such an analysis requires us to ask, in short, why as a matter of the theory of free expression, commercial speech is less deserving of First Amendment protection than noncommercial expression.
In answering this query, it is important at the outset to note that the Court's distinction does not turn on the subject or content of the expression in question. (198) The fact that the expression concerns the safety or effectiveness of a commercial service or product--as does much commercial advertising--is irrelevant to the distinction. (199) As long as the speaker is not motivated to promote commercial sale, under the Court's definition, the speech is not "commercial" and therefore does not deserve the reduced level of constitutional protection afforded to that expressive category. (200) This is so, regardless of the subject or content of the expression involved. For example, Ralph Nader's attacks on the Chevrolet Corvair's safety in his novel are not considered to be commercial speech, (201) even though they concern the merits of a commercially sold product. But General Motors' defenses of its product in response are considered to be commercial speech because they are part and parcel of a promotion of sale. (202) Nothing matters but the speaker's motivation, as the court so determines it. (203)
What is the logic behind such an entirely motivationally based distinction? Surely it cannot turn on the value of the expression because the speech of both Nader and General Motors concerns the exact same issue. Nor can it be grounded in some ex ante presumption that those attacking a commercial product or service tell the truth while those advocating purchases lie because no factual basis has supported either position.
Is it, as Robert Post has suggested, that commercial speech cannot be deemed protected "public discourse" because it "should be understood as an effort... simply to sell products" and not an effort "to engage public opinion"? (204) For several reasons, this line of thought is sorely misguided. Initially, it ignores the simple fact that the participants receiving the information, opinion, and advocacy enrich that public discourse as much as those who contribute to the process. (205) This should hardly be a controversial assertion. (206) But if value lies in information receipt, then what possible difference can the speaker's motivation make? Whether the speaker is Mother Theresa, Standard Oil, or Darth Vader, the information and opinion conveyed can play an equally legitimate role in shaping the citizenry's views, thoughts, and positions and, in so doing, further the democratic system's operation and the individual citizens' intellectual growth. Thus, once one recognizes the importance and value of an expression's receipt, (207) any distinction premised on the speaker's motivation is rendered completely incoherent.
Although that point alone should sufficiently demonstrate the wholly vacuous and misguided nature of Post's theory, other equally dispositive reasons support categorically rejecting his arguments. Even if we suspend disbelief on the speaker-recipient dichotomy and accept a theory favoring speech expressed for the purpose of contributing to public discourse, Post's theory remains flawed because it disregards speech's potential to reflect multiple motives. He denies that a speaker may speak for the purpose of advocating the sale of a product and for the purpose of affecting public opinion, when absolutely no basis to support such an assumption exists. (208) The commercial viability of books, movies, and even now video games proves quite the opposite. Consider also Jordan v. Jewel Food Stores, Inc., a right of publicity district court case in which a grocery store designed a page for a Sports Illustrated commemorative issue devoted to celebrating Michael Jordan. (209) The grocery store's congratulatory page included both its logo and a play on words with its slogan. (210) Even though one could affirmatively distinguish the page's purpose from other traditional means of advocating product sales, (211) Judge Gary Feinerman wrote that to ascribe an "economic motivation" to a for-profit corporation like Jewel "is to state a truism." (212) The Seventh Circuit, although it reversed Judge Feinerman's commercial speech determination, likewise "recognize[d] the obvious: that Jewel had something to gain by conspicuously joining the chorus of congratulations on the much-anticipated occasion of Jordan's induction into the Basketball Hall of Fame." (213) Post, in comparison, somehow manages to ignore this truth. Finally, even if we ignore the fatal problem of ascribing to a speaker a single motivation for purposes of evaluating Post's argument, the fact remains that no obvious evidentiary basis exists on which to determine a speaker's dominant motive. (214)
As a result of all of these flaws, Post's theory dangerously invites judges to abuse the process, allowing judges to punish speakers they dislike by concluding that the dominant motive underlying their speech is something other than an effort to contribute to public discourse. Any one of these flaws, standing alone, should sufficiently dispose of Post's theory. But when the dust settles, Post's theory is flawed because it turns exclusively on the speaker's motivation in speaking--an inquiry made in no other area of free speech law. Yet, speaker motivation inherently and unavoidably lies at the core of the Court's doctrinally embodied definition of commercial speech. (215) The conclusion is inescapable, then, that the Court's speaker-motivation basis for reducing commercial speech protection is fatally misguided.
2. Sorrell and the Right of Publicity
Sorrell v. IMS Health, Inc. adds a surreal quality to the Court's commercial speech jurisprudence. (216) In this case, the Court subjected a law penalizing commercial speech, but not noncommercial speech, to strict scrutiny because the law discriminated among speakers, favoring non-manufacturer expression regarding doctors' prescribing practices over drug manufacturer expression concerning identical subjects. (217) The Court wrote that "[t]he law on its face burdens disfavored speech by disfavored speakers." (218) Because the law censored only drug manufacturers' speech, it went "beyond mere content discrimination, to actual viewpoint discrimination." (219) But in so holding, the Court completely ignored the fact that its own commercial speech doctrine commits the identical act of invidious discrimination: the exact same expression receives different levels of protection, solely on the basis of the speaker's commercial motivation. In effect, the Court--to be sure, without knowing it--appears to have rendered its own preexisting doctrine unconstitutional. The consequence of the Court's protective dichotomy between commercial and noncommercial speech is unavoidable: the very same information or opinion, conveyed to the exact same audience, receives more or less protection, solely because of the speaker's motivation. (220)
Applying Sorrell's holding to publicity rights further demonstrates the invidious discrimination inherent in commercial speech doctrine. As a preliminary matter, publicity rights offer perhaps the primary area of law in which one can argue that the level of constitutional protection indeed turns on the speaker's economic purpose. (221) To the extent that one can rationalize publicity rights as a form of unjust enrichment, providing an economic advantage to the speaker-violator that rightfully belongs to the victim, (222) the doctrine arguably makes sense only when financial gain is the speaker's purpose for using the victim's name or likeness. But even in this context, competing unjust enrichment concerns should not automatically outbalance free speech interests. Sorrell suggests that a speaker's commercial motivation does not negatively impact the level of First Amendment protection that the Court extends to that speech. (223) Because the value of speech may be significant regardless of the speaker's motive, and fully protected expression can be restricted only to further a compelling interest, it is by no means clear that the economic interest in preventing unjust enrichment for a victim of infringed publicity rights trumps the speaker's First Amendment interests.
Society can suppress fully protected expressions only when doing so would prevent a threat of imminent violence or other form of extreme harm. (224) If we proceed on the premise that commercial advertising deserves full First Amendment protection because no principled basis can distinguish it from fully protected categories of expression, then a compelling interest must support any burden on commercial expression. The concern in avoiding unjust enrichment pales in comparison to a concern in protecting the public's health. It is purely an individual's economic concern, and in that sense, it does not differ from economically motivated commercial speech. At the very least, under the analysis we advocate here, a court enforcing the right of publicity--at least in the context of our baseline hypothetical (225)--would struggle to reconcile competing interests within the framework of a compelling interest structure. If there is one thing we can be sure that courts enforcing the right of publicity have never done, it is expending any effort to perform such a difficult weighing function. To the contrary, when commercial speech interests are involved, courts fail to consider any possible First Amendment interests.
As the following Section demonstrates, however, there are more compelling reasons to invalidate right of publicity claims, even when pure commercial speech is involved. The simple fact is this: excluding commercial speech from full First Amendment protection constitutes unconstitutionally underinclusive discrimination among constitutionally similar categories of expression.
B. The Irrational Distinction Between Forms of Profit Motivation
1. An Unprincipled Distinction Between Profit-Motivated Speakers
Although right of publicity cases categorically exclude protection for commercial speech, they do not draw a strict dichotomy, for purposes of First Amendment (or at least First Amendment-like) protection, between those motivated by financial gain and those who act out of purely altruistic purposes. Nor do these cases formally distinguish between those speakers concerned with profits and those concerned with promoting noncommercial types of self-interest. Rather, courts enforcing publicity rights draw speaker distinctions between those who use names or likenesses as part of commercial advertisements and those who use names or likenesses in more traditional profit-motivated communicative media. (226) In both situations, communicators seek to make a profit. Furthermore, we can even assume that the exact same information is communicated to the exact same audience. For example, if we say that Tom Cruise drives a BMW, the informational impact is the same, regardless of which of the two profit-making expressive forms conveys the communication. Yet, under long-accepted commercial speech doctrine, when this information is conveyed in an advertisement promoting sales of BMW, it receives less constitutional protection. (227) In the context of publicity rights, then, uses of a name or likeness in commercial advertisements receive absolutely no protection, whereas uses of a name or likeness in profit-making traditional media receive virtually absolute protection. (228)
The basis for constitutionally distinguishing between the two categories of expression for publicity rights is even weaker than the basis for differentiating between profit-motivated and non-profit-motivated expression, despite the fact that even that distinction is itself illogical and unjustified on the basis of any principled application of free expression theory. (229) Here, both expressive categories are motivated by profit. As Justice Brennan once perceptively noted, the fact that information comes in the form of an advertisement is no different, for First Amendment purposes, from "the fact that newspapers and books are sold." (230) But this insight, brilliant in its simplicity and obviousness, has somehow been lost in the shuffle of time and the shifting sands of constitutional doctrine. (231)
Sorrell highlights the need to revisit that insight, however inadvertently on the Court's part. (232) Recall that the Sorrell Court subjected a commercial/noncommercial distinction to strict scrutiny because the law imposed a speaker-based distinction. In Sorrell, the law at issue differentiated between academic researchers, who were permitted to use data-mined prescriber information, and drug manufacturers, who were prohibited from doing so. (233) Thus, the state sought to distinguish profit-motivated speakers from non-profit-making academics. (234) Yet, the Court held that the distinction should be subjected to the strict scrutiny test, which is almost impossible to satisfy. (235) Importing this baseline from Sorrell into publicity rights cases further demonstrates the absurdity of the speaker-based distinction. In contrast to Sorrell's commercial/noncommercial distinction, publicity rights differentiate between sub-forms of profit-motivated speech. (236) This distinction is even more dubious under the First Amendment than the distinction rejected in Sorrell. When the speaker in both cases--a commercial advertiser and a more traditional profit-making communications medium--acts out of a profit motivation to convey the exact same information to roughly the same audience, drawing a dichotomy for purposes of First Amendment protection, as Justice Brennan recognized in Sullivan, is wholly illogical. (237)
Is there any conceivably principled basis on which to distinguish, for purposes of the level of First Amendment protection, between profit-motivated speech that comes in the form of a commercial advertisement promoting sale and profit-motivated speech that comes in the form of a traditional medium of communication, even though both the communication's substance and the audience are identical? Ultimately, we conclude that the answer is no. However, we can imagine three conceivable arguments that scholars might fashion to justify such a distinction. The following Section illustrates the flaws in each argument.
2. Rejecting Attempts to Justify the Distinction
Three conceivable arguments could support the distinction between commercial advertisements and the communications media for both First Amendment and right of publicity purposes, even if both convey the exact same information to roughly the same audience. First, one could suggest that a commercial advertiser's speech is designed to persuade the listener to purchase a product or service, while the commercial success of the speech of the traditionally protected communicator generally does not turn on persuading a reader or viewer to do anything. Second, one could argue that, purely as a matter of constitutional tradition, commercial advertisements have received no or at least reduced protection, while expression conveyed in books, newspapers, and magazines, and on television and radio have received the highest level of First Amendment protection. Finally, one might argue that the latter category of expression receives the special protection that the First Amendment extends to the press, while commercial advertisements receive only the level of protection afforded to free speech. Even a casual examination of each of these arguments, however, reveals fatal flaws in their logic or accuracy.
a. The Persuasive Goal of Expression Does Not Reduce the Level of Protection
As to the first suggested distinction, commercial advertisers, it can safely be assumed, always advocate purchase, while more traditional communications media are generally not so motivated. Of course, even if one conceded the logic of this distinction solely for purpose of this argument, the theory fails to explain the ex ante categorical distinction between the two communicators in situations in which the traditionally protected medium in fact strives to persuade the listener to purchase. But even putting that fatal flaw aside, it remains unclear why this difference in motivation, in and of itself, justifies stratification in the level of First Amendment protection. No logical bases exist to suggest that the First Amendment applies any less to speech used to persuade rather than merely to inform. Indeed, one of the classic justifications for free speech protection is that it facilitates self-governing choices. (238) There is no basis for categorically assuming, ex ante, that the commercial advertiser's expression is more likely to be false or misleading than the traditional communications medium's expression. Such a conclusion would, of course, necessarily depend on an examination of the specific facts in each case. After all, purely political expression, which often appears in traditional communications media, is often self-promotional. Purely political expression often seeks to persuade the listener to take actions that will benefit the speaker, (239) but surely such speech does not lose protection as a result.
In the right of publicity context, the rationale makes even less sense because our hypothesis assumes that the expression is identical in both cases (for example, Tom Cruise drives a BMW). Speech, therefore, is no more likely to be false or misleading in one instance than in the other. Moreover, to the extent that courts assume publicity rights are grounded in unjust enrichment concerns, the danger of unjustly usurping profit is just as great when the speaker-violator is a profit-making communications entity as when it is a commercial advertiser. (240) Because courts afford the First Amendment privilege to traditional profit-motivated media in right of publicity cases, celebrities are denied the opportunity to benefit financially from the traditional media's use of their names or likenesses, even though those media outlets profit from that use. (241)
b. Noncommercial Speech Does Not Deserve Special Treatment Because of "Tradition"
The second asserted distinction, grounded in accepted notions of what modes of expression receive protection, is even more dubious. When the exact same expression is disseminated to the exact same audience, it does not make even the slightest bit of sense to rely on
some mindless notion of historical practice. By this very reasoning, it is unclear why expressions disseminated on television, radio, or through the Internet receive full First Amendment protection which all of these can be considered relatively new media. Indeed, the Supreme Court's recent recognition that commercially motivated, violent video games deserve full First Amendment protection (242) renders any appeal to notions of tradition a hollow--or disingenuous--exercise.
c. The "Press" Clause Does Not Lend Greater Protection to Noncommercial Speech
Finally, the suggested distinction based on the added First Amendment protection afforded to the press makes no more sense than the other two asserted rationales. Purely as a doctrinal matter, the Court has never held that the "press" freedom provides greater protection than the speech clause. (243) Nor would it be reasonable for it to do so, especially in today's media climate. Expression that comes in the form of pure speech has never been deemed to take a back seat for protective purposes to printed expression. (244) Moreover, if one proceeded on the accuracy of this assumption, it is by no means clear that "press" protection should extend to new media, such as radio and television, both of which involve far more "speech" than they do printed word. Finally, efforts to distinguish expressive forms of communication and other forms of "press" would certainly be frustrated, for example, if a commercial advertiser chooses to publish a monthly magazine or sponsor a blog.
Once courts enforcing publicity rights reject the unprincipled distinction between different forms of profit-motivated expression, they arguably have an option. They can either subject the publicity right to First Amendment protection for profit-motivated speech or enforce the right against all profit-motivated speech. The latter route is clearly untenable, however, both as a practical matter and as a matter of First Amendment analysis. Therefore, the conclusion that the First Amendment protects commercial advertisers against liability for violating a right of publicity--at least in contexts in which it would also protect the expression of traditional media (245)--is logically inescapable.
C. Applying Modern Commercial Speech Doctrine to the Right of Publicity
Let us assume, for present purposes, that the existing doctrinal universe of First Amendment protection remains unchanged. Although much of this Article has been designed to explain the serious flaws in that framework, even under the doctrinal status quo, courts should hold that the current structure of the right of publicity violates the First Amendment. The problem is, simply, that once a court enforcing the right of publicity finds commercial speech involved, it automatically disposes of First Amendment concerns. (246) Although the Supreme Court currently provides a lesser standard of constitutional protection to commercial speech than it does to noncommercial expression, it would be a gross mistake to assume that the level of protection given to commercial speech is meager or nonexistent. To the contrary, although the Court continues to adhere to the four-pronged Central Hudson test, (247) that test as currently applied offers far more protection than it did in its early years. (248) Yet, in the context of publicity rights, courts somehow have not received the message. Once the modern version of the Central Hudson test is applied to right of publicity claims, the dichotomy in the existing doctrinal framework between commercial advertisers and other forms of profit-motivated communication proves even more questionable.
In Central Hudson, the Court adopted a four-part test. (249) The first inquiry is whether the speech in question promotes the sale of an unlawful product or service, or is found to be false or misleading. (250) If the answer to either of these questions is in the affirmative, the court automatically excludes the expression from the First Amendment's protective reach. (251) If the answer to both questions is in the negative, the reviewing court proceeds to examine the remaining three factors. (252) Under the test's second prong, the government must demonstrate that its regulation of commercial speech serves a "substantial" governmental interest. (253) Once that inquiry has been satisfied, the court "must determine whether the regulation directly advances the governmental interest asserted." (204) The court should invalidate the regulation if it "only indirectly advance[s] the state interest involved." (255) The regulation must materially advance the state's interest. (256) The government has the burden of establishing, beyond mere speculation, that the regulation actually does so. (257) Even if the government satisfies this requirement, however, the court must then proceed to the test's fourth prong: whether the regulation is "[no] more extensive than is necessary to serve [the substantial governmental] interest." (258) The third and fourth prongs have often been grouped together under the heading of a "reasonable fit" requirement. (259) In applying the Central Hudson test since the mid-1990s, the Supreme Court has regularly invalidated regulations suppressing commercial speech. (260)
The constitutional problem here for the right of publicity--what can appropriately be called the flaw of "under inclusion"--derives from the "reasonable fit" requirement. Although the Court in one of its earlier decisions stated that the government need not remove all causes of a problem to suppress commercial speech giving rise to that problem, (261) later decisions appear to have largely undermined this sweeping assertion. Under controlling commercial speech case law, the government cannot justify commercial speech suppression when a significant danger of the exact same harm would continue to exist. (262) For example, in City of Cincinnati v. Discovery Network, Inc., (263) the Court invalidated the city's prohibition of newsracks that distributed commercial advertising newspapers in the name of improving aesthetics because the commercial news racks "are no greater an eyesore than the newsracks permitted to remain on Cincinnati's sidewalks." (264) Similarly, in Greater New Orleans Broadcasting Association, Inc. v. United States, (265) the Court rejected the government's argument that a prohibition on casino gambling advertising would deter gambling, in part on the basis of its conclusion that "any measure of the effectiveness of the Government's attempt to minimize the social costs of gambling cannot ignore Congress's simultaneous encouragement of tribal casino gambling, which may well be growing at a rate exceeding any increase in gambling or compulsive gambling that private casino advertising could produce." (266)
These decisions are important because they demonstrate that government may not discriminate against commercial speech by suppressing it when significant amounts of noncommercial expression giving rise to the exact same problem remain unregulated. In a certain sense, these decisions anticipated the Court's subsequent holding in Sorrell that subjected expressive discriminations against commercial speakers to strict scrutiny. (267) Likewise, the decisions are foreboding for the right of publicity because existing doctrine imposes a stark and unjustified discrimination against commercial expression. Although courts have summarily denied First Amendment protection to profit-motivated commercial expression that uses a person's name or likeness, profit-motivated expression conveyed in a communications media that invades the victim's exact same interest receives full protection.
Whatever rationale one employs to justify the right of publicity, the harm caused by the expression is identical in both situations. We conclude that both moral and economic arguments underscoring publicity rights illustrate victims' primary concern for attaining and protecting financial gain. (268) These pecuniary concerns place people seeking to exercise publicity rights on the same level as traditional media speakers. If there were some basis for believing that the impact of a commercial advertiser's expression is more severe or invasive than that caused by traditional media and, in fact reflects privacy concerns, however, the distinction would be constitutional. But when motivations are financial, as we find them to be universally, publicity rights' constitutional flaw is identical to the one that led the Discovery Network Court to hold the city's selective exclusion of commercial newspaper boxes on its streets for aesthetics as unconstitutional. (269)
The right of publicity has a long and, some would say, venerable history in the jurisprudence of American tort law. For years it has been widely understood that the right potentially gives rise to First Amendment problems because of its obviously suppressive impact on the communication of information and opinion. But courts universally assume that the First Amendment interest is fully satisfied by recognizing a "newsworthiness" privilege, which categorically excludes any expression included in a commercial advertisement from its protective scope. This jurisprudence has proceeded, however, with mystifying ignorance of the last forty years of evolution and expansion in the level of First Amendment protection afforded to such speech.
We have demonstrated that the cavalier rejection of protection for commercial advertising ignores well-established doctrine and sound precepts of First Amendment theory. It is now time for the right of publicity to be introduced to the twenty-first century of First Amendment law.
(1.) See, e.g., James Franco, Selfies: The Attention Grabber, N.Y. Times, Dec. 29, 2013, at AR20 ("In this age of too much information
at a click of a button, the power to attract viewers amid the sea of things to read and watch is power indeed. It's what the movie studios want for their products, it's what professional writers want for their work, it's what newspapers want--hell, it's what everyone wants: attention."); Alex Ben Block, Why New Award Shows Are Crowding TV's Calendar, HOLLYWOOD REPORTER (Jan. 9, 2014, 5:00 AM), http://www. hollywoodreporter.com/news/golden-globes-why-new-award-668767 [http://perma.cc/SNF4L85K] (describing demand for award shows); Scott Goodson, The 30 Most Popular Celebrity Gossip Sites and Why Big Brands Love Them, FORBES (May 24, 2013, 2:20 PM), http://www. forbes.com/sites/marketshare/2013/05/24/the-30-most-popular-celebrity-gossip-sites-and-whybig-brands-love-them [http://perma.cc/R3EK-VUGU] ("Celebrity drives viewership. No doubt. They are eyeball magnets. Celebrity content pulls tons of views. And nothing, it seems, attracts more eyeballs than celebrity gossip websites."); see also Julie Creswell, Nothing Sells Like Celebrity, N.Y. TIMES, June 22, 2008, at BUN1 ("[C]orporate brands have increasingly turned to Hollywood celebrities and musicians to sell their products.").
(2.) See infra Part I.A.
(3.) See infra Part I.B.3.
(4.) See Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2733 (2011) ("Like the protected books, plays, and movies that preceded them, video games communicate ideas--and even social messages--through many familiar literary devices... and through features distinctive to the medium (such as the player's interaction with the virtual world).").
(5.) See In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1271 (9th Cir. 2013); Hart v. Elec. Arts, Inc., 717 F.3d 141, 170 (3d Cir. 2013).
(6.) Hart, 717 F.3d at 168.
(7.) In re NCAA, 724 F.3d at 1283.
(8.) See, e.g., Brown, 131 S. Ct. at 2733 ("The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. 'Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine.'" (quoting Winters v. New York, 333 U.S. 507, 510 (1948))).
(9.) See, e.g., Time, Inc. v. Hill, 385 U.S. 374, 397 (1967) ("That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment." (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952))).
(10.) See, e.g., Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 514 (7th Cir. 2014) ("[T]here is no judicial consensus on how to resolve conflicts between intellectual-property rights and free speech rights.").
(11.) See, infra Part II.A.1.
(12.) See, e.g., ETW Corp. v. Jireh Publ'g, Inc., 332 F.3d 915, 954 (6th Cir. 2003) (Clay, J., dissenting) ("[T]he point of confusion most associated with the right of publicity law is its interplay with the First Amendment."); Mark S. Lee, Agents of Chaos: Judicial Confusion in Defining the Right of Publicity-Free Speech Interface, 23 LOY. L.A. Ent. L. Rev. 471, 472 (2003) ("[T]he current legal landscape is a confusing morass of inconsistent, sometimes non-existent, or mutually exclusive approaches, tests, standards, and guidelines, with the confusion only increased by several recent rulings.").
(13.) See Martin H. Redish, Commercial Speech, First Amendment Intuitionism and the Twilight Zone of Viewpoint Discrimination, 41 LOY. L.A. L. Rev. 67, 67 (2007).
(14.) See infra Part III.
(15.) See infra Part II.A.1.
(16.) See infra Part I.B.2.
(17.) Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193, 198-99 (1890) ("The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.... It is immaterial whether it be by word or by signs, in painting, by sculpture, or in music.... In every such case the individual is entitled to decide whether that which is his shall be given to the public." (footnotes omitted)).
(18.) See Neil M. Richards & Daniel J. Solove, Prosser's Privacy Law: A Mixed Legacy, 98 CALIF. L. Rev. 1887, 1893 (2010) ("Although courts developed these early torts in response to Warren and Brandeis's article, the torts involved a different context from the one that Warren and Brandeis had envisioned.").
(19.) 64 N.E. 442, 448 (N.Y. 1902).
(20.) Id. at 447-48.
(21.) Id. at 443.
(22.) N.Y. Civ. Rights Law [section][section] 50-51 (McKinney 1903) (amended 1921).
(23.) Pavesich v. New England Life Ins. Co., 50 S.E. 68, 70 (Ga. 1905) ("The right of one to exhibit himself to the public at all proper times, in all proper places, and in a proper manner is embraced within the right of personal liberty. The right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law, is also embraced within the right of personal liberty. Publicity in one instance, and privacy in the other, are each guaranteed. If personal liberty embraces the right of publicity, it no less embraces the correlative right of privacy, and this is no new idea in Georgia law.").
(24.) Like many others today, we reject a characterization of the right of publicity as anything other than a property right exercised by plaintiffs to make profits. Early suggestions that publicity rights are cut from the cloth of privacy rights misunderstand how plaintiffs might use privacy/publicity rights to seek profit, not shelter, from the limelight. In addition, they fail to comprehend the expansive reach of other tort protections, such as claims for defamation and false light. See infra Part I.B.l.b.
(25.) Richards & Solove, supra note 18, at 1894 nn.34-36 (collecting treatises and casebooks published between 1916 and 1933).
(26.) Restatement (First) of Torts [section] 867 (1939).
(27.) Louis Nizer, The Right of Privacy. A Half-Century's Developments, 39 MICH. L. Rev. 526, 529-30 (1941).
(28.) William L. Prosser, Handbook of the Law of Torts 1053-54 (1st ed. 1941).
(29.) Id. at 1051.
(30.) Id. at 1054-56
(31.) William Lloyd Prosser, Selected Topics on the Law of Torts 119-20 (1954) (publishing five lectures from 1953). In 1960, Prosser lamented how Warren and Brandeis's article had developed "four ... loosely related torts," recognizing that "it is high time that we realize what we are doing, and give some consideration to the question of where, if anywhere, we are to call a halt." William L. Prosser, Privacy, 48 CALIF. L. Rev. 383, 422, 423 (1960).
(32.) See W. Page Keeton et al., Prosser & Keeton on the Law of Torts [section] 117 (5th ed. 1984).
(33.) 202 F.2d 866 (2d Cir. 1953).
(34.) Id. at 867.
(35.) Id. at 868.
(37.) Id. (emphasis added).
(38.) Id. He noted that "the tag 'property' simply symbolizes the fact that courts enforce a claim which has pecuniary worth." Id. But whereas Judge Frank preferred to create a new label and context for this right, Prosser continued to recognize "appropriation privacy," a term he believed already encompassed the proprietary nature of the use of a plaintiffs name and likeness as an aspect of her identity. See PROSSER, supra note 31, at 389.
(39.) Robert C. Post, Rereading Warren and Brandeis: Privacy, Property, and Appropriation, 41 Case W. Res. L. Rev. 647, 666 (1991) (defining the right as "a property right that would safeguard the goodwill created by celebrities in their public persona"). Although Professor Post defines the right narrowly at the outset, he later addresses how "[t]he right of publicity ... divides a person in to two ... the objectified image ... which has become a thing of value capable of being owned and transferred," and what he says Oliver Wendell Holmes would call "the 'natural personality.'" Id. at 678 (citations omitted).
(40.) Jennifer E. Rothman, The Inalienable Right of Publicity, 101 GEO. L.J. 185, 227 (2012) ("The right of publicity encompasses rights far beyond the mere collection of income and entitlement to the economic value that flows from uses of a person's identity. The right of publicity provides control over the use of a person's identity and, therefore, ultimately over the person herself.").
(41.) Michael Madow, Private Ownership of Public Image: Popular Cultural and Publicity Rights, 81 CALIF. L. Rev. 125, 178 (1993). Professor Madow divided the main justifications for publicity rights into three categories: (1) moral arguments (reaping only what you have sown); (2) economic arguments (such as incentivizing creative effort and promoting allocative efficiency); and (3) consumer protection. Id. He argued that "the rationales most commonly advanced in support of the right of publicity nowadays are no more compelling than those put forward by Judge Frank and Melville Nimmer in the early 1950s." Id. We have adopted the gist of this framework, making one slight revision. Because the consumer protection justification operates as a means of policing purchasing behavior, we have folded it into the economic category.
(42.) Id. at 142. Earlier in his article, Professor Madow distinguishes '"cultural pessimists' ... who [view]... popular culture as a field in which dominant, repressive (in other words, consumerist, patriarchal, etc.) meanings are systematically reproduced and reinforced" from "'cultural populists... [who] view popular culture as contested terrain in which individuals and groups... [seek] to make and establish their own meanings and identities." Id. at 138-39. Siding with cultural populists, he challenges the right of publicity by arguing that the "[l]aw can accelerate the already powerful trend toward centralized, top-down management of popular culture, or it can fight a rearguard (and perhaps futile) action on the side of a more decentralized, open, democratic cultural practice." Id. at 142.
(43.) See, e.g., id. at 136, 138.
(44.) See, e.g., Sheldon W. Halpern, The Right of Publicity: Maturation of an Independent Right Protecting the Associative Value of Personality, 46 HASTINGS L.J. 853, 871-72 (1995). Professor Halpern dismisses Professor Madow's "strong words" about wealth distribution and meaning control, writing that "the reliance on conjectural extrapolation rather than on examination of the right's core paradigm leaves the burden still on those who would undo the work of the past forty years." Id. at 872-73.
(45.) Melville Nimmer, The Right of Publicity, 19 Law & CONTEMP. PROBS. 203, 223 (1954).
(46.) See Madow, supra note 41, at 176.
(47.) See Nimmer, supra note 45, at 216 (emphasis added).
(48.) See JOHN LOCKE, The SECOND TREATISE OF GOVERNMENT 17 (Thomas P. Peardon ed., Liberal Arts Press 1952) (1690).
(49.) More than forty years later, Professor Roberta Kwall described celebrity "construction" in a similar way, noting that "the effort in constructing the celebrity persona represents an intellectual, emotional, and physical effort on the part of the celebrity that requires protection." Roberta Rosenthal Kwall, Fame, 73 IND. L.J. 1, 41 (1997).
(50.) See, e.g., Alice Haemmerli, Whose Who? The Case for a Kantian Right of Publicity, 49 Duke L.J. 383, 388 (1999) ("Both proponents and critics of the right of publicity generally perceive it as a property claim grounded in Lockean labor theory. Although other rationales are occasionally propounded, no serious attempt has been made to elaborate an alternative philosophical justification for the right.").
(52.) See Harry Kalven, Jr., Privacy in Tort Law--Were Warren and Brandeis Wrong?, 31 LAW & CONTEMP. PROBS. 326, 331 (1966); see also Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831, 837 (6th Cir. 1983) ("Vindication of the right will also tend to prevent unjust enrichment by persons... who seek commercially to exploit the identity of celebrities without their consent."); Bi-Rite Enters., Inc. v. Button Master, 555 F. Supp. 1188, 1198 (S.D.N.Y. 1983) (noting that the right "prevents unjust enrichment by providing a remedy against exploitation of the goodwill and reputation that a person develops in his name or likeness through the investment of time, effort, and money").
(53.) Midler v. Ford Motor Co., 849 F.2d 460, 462 (9th Cir. 1988) (quoting the district court judge in a case in which Bette Midler's voice was mimicked for an automobile advertisement with a "sound alike").
(54.) Hirsch v. S. C. Johnson & Son, Inc., 280 N.W.2d 129, 134-35 (Wis. 1979) (internal quotation marks omitted) (ruling in favor of Elroy "Crazylegs" Hirsch for the unauthorized use of his nickname on women's shaving gel because Hirsch had "assiduously cultivated a reputation not only for skill as an athlete, but as an exemplary person").
(55.) As examples, one needs look no further than Paris Hilton, or Perez Hilton, or any number of stars who are, as Daniel Boorstin put it, famous for being famous. See DANIEL J. Boorstin, The Image: A Guide to Pseudo-Events in America 57 (1961); see also Neal Gabler, Daniel Boorstin Got It Right in "The Image," L.A. TIMES (Apr. 15, 2012), http://articles. latimes.com/2012/apr/15/entertainmentAa-ca-neal-gabler-20120415 [http://perma.ee/YRB8U93J],
(56.) 971 F.2d 1395, 1396 (9th Cir. 1992).
(57.) Id. at 1399.
(59.) 830 F. Supp. 2d 785, 808 (N.D. Cal. 2011) (involving a class action lawsuit against Facebook for its advertising practice of "Sponsored Stories," which used members' names, profile pictures, and assertions that the people "liked" certain advertisers, along with the advertisers' logos, as part of other members' Facebook pages).
(60.) Id. For an argument that granting non-celebrities publicity rights is a "problematic expansion of the tort," see Alicia M. Hunt, Comment, Everyone Wants to Be a Star: Extensive Publicity Rights for Noncelebrities Unduly Restrict Commercial Speech, 95 Nw. U. L. Rev. 1605 (2001).
(61.) See Madow, supra note 41, at 184-85.
(62.) See id.; see also David Tan, Political Recoding of the Contemporary Celebrity and the First Amendment, 2 HARV. J. SPORTS & ENT. Law 1, 37 (2011) (noting that celebrity signs "transcend the human individuals who bear these names and are symbolic of the ideological hegemonies of social identities in contemporary society").
(63.) See Mark P. McKenna, The Right of Publicity and Autonomous Self-Definition, 67 U. Pitt. L. Rev. 225, 282 (2005).
(64.) See id.
(65.) Id. at 283. J. Thomas McCarthy articulates a similar argument by equating a person's identity to property, saying that "[p]erhaps nothing is so strongly intuited as the notion that my identity is mine--it is my property to control as I see fit." J. THOMAS McCarthy, 1 The Rights of Publicity and Privacy [section] 2.1 (2d ed. 2009).
(66.) Pavesich v. New England Life Ins. Co., 50 S.E. 68, 80 (Ga. 1905).
(67.) See infra Part I.B.1.
(68.) See Haelan Labs. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953); see also Rothman, supra note 40, at 186.
(69.) See Michael Hiltzik, Introducing the Creepiest TV Commercial Ever Made, L.A. TIMES (Mar. 4, 2014), http://www.latimes.com/business/hiltzik/la-fi-mh-creepiest-tv-commercia-l20140304-story.html [http://perma.cc/D43C-NSFG] (describing Hepburn's reanimation "to shill for Dove chocolates"). According to Hiltzik, "[w]hat may be more interesting than the technology is what the commercial says about the exploitation of celebrities' images after their deaths. This has been a fast-changing area of legislation, driven almost entirely by commercial considerations--that is, the opportunity for heirs and licensees to make money." Id. (emphasis added).
(70.) See id.; Galaxy /Dove "Chauffeur," FRAMESTORE, http://www.framestore.com/work/ galaxy-choose-silk-chauffeur [http://perma.cc/UWY5-3E7X] (last visited Mar. 25, 2015) (describing the process of developing the commercial, including efforts "to perfect the complex look of human skin" and tireless work "to recreate the icon's signature smile"). Gap similarly used Audrey Hepburn in 2006, mixing scenes from the movie Funny Face with AC/DC's "Back in Black" to advertise skinny black pants. See Danny Miller, Audrey Hepburn: Dead is the New Alive, HUFFINGTON POST (May 25, 2011, 11:55 AM), http://www.huffmgtonpost.com/ danny-miller/audrey-hepburn-dead-is-th_b_29484.html [http://perma.cc/4GWR-7T6Z].
(71.) Rothman, supra note 40, at 229.
(72.) Madow, supra note 41, at 182 n.271 ("To the extent this body of law is believed to provide insufficient protection to the celebrity's legitimate interest in autonomy and dignity, the appropriate response is to amend it, rather than to commodify the celebrity personas.").
(73.) Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959, 975 (10th Cir. 1996). McCarthy asserts that "this is an astonishing statement for a court of law to make because it characterizes the intuitive and natural human feeling that everyone should have control over the commercial use of their identity." MCCARTHY, supra note 65, [section] 2.2.
(74.) Roberson v. Rochester Folding Box Co., 64 N.E. 442, 442 (N.Y. 1902).
(75.) O'Brien v. Pabst Sales Co., 124 F.2d 167, 168 (5th Cir. 1942).
(76.) Id. at 168-69. But the Fifth Circuit upheld a directed verdict for Pabst when it found no violation of the plaintiff's right of privacy (since his university had consented) and no reason to construe the calendar as falsely stating that he used, endorsed, or recommended the product. See id. at 170.
(77.) See Richard A. Epstein, Privacy, Property Rights, and Misrepresentations, 12 Ga. L. Rev. 455, 469 (1978).
(78.) McCarthy, supra note 65, [section] 2.6.
(79.) 433 U.S. 562, 563 (1977).
(80.) Id. at 576.
(81.) Matthews v. Wozencraft, 15 F.3d 432, 437-38 (5th Cir. 1994) (holding that a nonfiction book accounting the life of a former undercover narcotics officer fell within First Amendment protection).
(82.) See C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 824, 826 (8th Cir. 2007) (holding that the First Amendment right of a fantasy major league baseball games producer to use players' names and statistical information took precedence over players' rights).
(83.) Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959, 973 (10th Cir. 1996).
(84.) Id. (citing Zacchini v. Schripps-Howard Broad. Co., 433 U.S. 562, 576 (1977)).
(85.) See, e.g., Mark F. Grady, A Positive Economic Theory of the Right of Publicity, 1 UCLA Ent. L. Rev. 97, 111 (1994); Eugene Volokh, Freedom of Speech and Right of Publicity, 40 HOUS. L. REV. 903, 911 (2003) ("[Rjight of publicity law certainly prohibits the creation of some new works (prints, sculptures, and the like) in order to provide a small speculative increase in the incentive to create other works (the works that would make a person famous). If the law's goal is encouraging the production of new works, the right of publicity will likely disserve the interest more than it serves it."); see also Madow, supra note 41, at 195 n.334 (noting that legal recognition of publicity rights simply "give[s] celebrities (or their assignees) an effective veto power over disfavored commercial appropriations or 'readings' of star images").
(86.) Cardtoons, 95 F.3d at 973-74; see also C.B.C. Distrib. & Mktg., Inc., 505 F.3d at 824 ("[M]ajor league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements."); Madow, supra note 41, at 209 ("[T]he particular activities in our society that generate commercially marketable fame are themselves, again with isolated exceptions, very handsomely compensated.").
(87.) McCarthy, supra note 65, [section] 2.6.
(88.) See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988).
(89.) See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 29-32, 39 (3d ed. 1986); Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347, 356 (1967).
(90.) Richard A. Posner, The Right of Privacy, 12 Ga. L. Rev. 393, 411 (1978).
(92.) Grady, supra note 85, at 98.
(94.) Id. at 119.
(95.) Id.; see also Hicks v. Casablanca Records, 464 F. Supp. 426, 430 (S.D.N.Y. 1978) (noting that books and movies, "more so than posters, bubble gum cards, or some other such 'merchandise,'" have enjoyed certain constitutional protections).
(96.) Grady, supra note 85, at 120-23. Earlier in his article, Professor Grady points to the case of Matthews v. Wozencraft as an example. Grady, supra note 85, at 112 (discussing Matthews v. Wozencraft, 15 F.3d 432, 436-38 (5th Cir. 1994)). In Matthews, the defendant wrote a book invoking a celebrity and the court held that it increased, not decreased, the plaintiffs publicity value, resulting in no cause of action. Grady, supra note 85, at 112.
(97.) It is partially for this reason that our hypothetical baseline for discussing a commercial speech defense to an assertion of publicity rights assumes that the advertiser represents that a celebrity actually uses a product. See infra Part III.
(98.) See James M. Treece, Commercial Exploitation of Names, Likenesses, and Personal Histories, 51 TEX. L. Rev. 637, 647 (1973).
(99.) Peter L. Felcher & Edward L. Rubin, Privacy, Publicity, and the Portrayal of Real People by the Media, 88 Yale L.J. 1577, 1600 (1979).
(100.) See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 563-64 (1980); see also Gertz v. Welch, Inc., 418 U.S. 323, 340 (1974).
(101.) See infra Part II.
(102.) In the Supreme Court's only case addressing the right of publicity, it ruled narrowly on the facts of the case. The Court's language provides little guidance to subsequent courts addressing the conflict. See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 574-75 (1977) ("Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent.").
(103.) See infra Part II.B.
(104.) See infra Part II.A.
(105.) McCarthy, supra note 65, [section] 6.6.
(106.) McKinney v. Morris, No. B240830, 2013 WL 5617125, at *19 (Cal. Ct. App. Oct. 15, 2013) (dismissing plaintiff's cause of action for common law and statutory misappropriation for using her in a documentary that concerned a subject of widespread public interest); see also Stewart v. Rolling Stone LLC, 105 Cal. Rptr. 3d 98, 111 (Ct. App. 2010); Dora v. Frontline Video, Inc., 18 Cal. Rptr. 2d 790, 794 (Ct. App. 1993).
(107.) CAL. Crv. Code [section] 3344(d) (West 2010) (emphasis added).
(108.) McKinney, 2013 WL 5617125, at *19.
(109.) See Dora, 18 Cal. Rptr. 2d at 794; see also Eastwood v. Superior Court, 198 Cal. Rptr. 342, 350 (Ct. App. 1983) ("The scope of the privilege extends to almost all reporting of recent events even though it involves the publication of a purely private person's name or likeness.").
(110.) Dora, 18 Cal. Rptr. 2d at 794; see also Doe v. Gangland Prod., Inc., 730 F.3d 946, 961 (9th Cir. 2013) (concluding that even if a documentary on gang activities was not "news" for the purpose of the statute, it fell within the public affairs exception).
(111.) 85 F.3d 407, 409 (9th Cir. 1996); cf. Jordan v. Jewel Food Stores, Inc., 743 F. 3d 509 (7th Cir. 2014) (reversing a district court's finding that a grocery store's page in a commemorative magazine issue, which used Michael Jordan's image without his consent, constituted noncommercial speech).
(112.) Abdul-Jabbar, 85 F.3d at 416. The U.S. District Court for the Northern District of Ohio favorably cited this proposition in a case concerning Ohio's public affairs exception. See Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 924 (N.D. Ohio 2004).
(113.) 830 F. Supp. 2d 785, 805 (N.D. Cal. 2011); see also Estate of Fuller v. Maxfield & Oberton Holdings, LLC, 906 F. Supp. 2d 997, 1010-11 (N.D. Cal. 2012) (finding the use of a name "for purposes of selling and advertising" and "increasing sales" to constitute a commercial use beyond the scope of the newsworthiness exception).
(114.) Fraley, 830 F. Supp. 2d at 805.
(115.) In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1282 (9th Cir. 2013).
(116.) See id. at 1283. The court's preference for traditional reportage over entertaining speech illustrates its bias against profit-motivated, nontraditional speech. See infra Part III.B.l.
(117.) See Roberson v. Rochester Folding Box Co., 64 N.E. 442, 447-48 (N.Y. 1902).
(118.) N.Y. Civ. RIGHTS Law [section] 50 (McKinney 2012). The Restatement (Third) of Unfair Competition similarly characterizes the right of publicity tort in section 46 as appropriating the commercial value of a person's identity without permission by using the person's name, likeness, or other indicia of identity "for purposes of trade." RESTATEMENT (THIRD) OF UNFAIR COMPETITION [section] 46 (1995). The statement "[f]or purposes of trade" does not encompass using the person's identity in news reporting, commentary, entertainment, or works of fiction or nonfiction, or in advertising that is incidental to such uses. Id. [section] 47. These exemptions reflect the fact that "[t]he use of a person's identity primarily for the purpose of communicating information or expressing ideas is not generally actionable as a violation of the person's right of publicity." Id. [section] 47 cmt. c.
(119.) N.Y. Civ. RIGHTS Law [section] 51 (McKinney 2012).
(120.) Finger v. Omni Publ'ns Inti, Ltd., 77 N.E.2d 141, 143 (N.Y. 1990) (citations and quotations omitted).
(121.) See Hoepker v. Kruger, 200 F. Supp. 2d 340, 350 & n.16, 353 (S.D.N.Y. 2002) (calling this exception the "ancillary use" or "incidental use" exception).
(122.) See Finger, 77 N.E.2d at 144.
(123.) See 474 N.E.2d 580, 586 (N.Y. 1984).
(124.) Id. at 585. Notably, the defendant was not making a profit from what it chose to feature in the column. See id.
(126.) Finger, 77 N.E.2d at 144. Simply because speech is presumably created and distributed for the purpose of making a profit does not confer upon it the title of "advertising" or "purposes of trade." See, e.g., Time, Inc. v. Hill, 385 U.S. 374, 397 (1967) (interpreting New York law and finding that because "books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment" (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952))).
(127.) See Groden v. Random House, Inc., 61 F.3d 1045, 1050-51 (2d Cir. 1995) (internal quotation marks omitted).
(128.) See, e.g., Alfano v. NGHT, Inc., 623 F. Supp. 2d 355, 360 (E.D.N.Y. 2009).
(129.) See, e.g., Yasin v. Q-Boro Holdings, LLC, No. 13259109, 2010 WL 1704889, at *2 (N.Y.
Sup. Ct. Apr. 23, 2010) ("[T]he use of Yasin's image on the front cover of defendant's book is purely for marketing and trade purposes; solely as a means to attract customers and generate sales.").
(130.) Beverly v. Choices Women's Med. Ctr., Inc., 587 N.E.2d 275, 279 (N.Y. 1991).
(131.) See, e.g., FLA. STAT. ANN. [section] 540.08(4) (West 2007); 765 ILL. COMP. Stat. Ann. 1075/35(b)(2) (West 2014); IND. CODE ANN. [section] 32-36-1-1(c)(1)(B) (West 2009); OHIO REV. CODE ANN. [section] 2741.02(D)(1) (West 2014); see also MCCARTHY, supra note 65, [section] 8.91.
(132.) See, e.g., 765 ILL. COMP. STAT 1075/30; 42 PA. CONS. STAT. ANN. [section] 8316(a) (West 2014); Tenn. CODE Ann. [section] 47-25-1105(a) (West 2010). In Illinois, for example, a "commercial purpose" means holding out a person's identity in connection with selling a product or service, advertising, or fundraising. 765 ILL. COMP. STAT. 1075/5 (West 2014).
(133.) 433 U.S. 562 (1977).
(134.) Id. at 563-64.
(135.) Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454, 461-62 (Ohio 1976), rev'd, 433 U.S. 562 (1977).
(136.) Zacchini, 433 U.S. at 574-75 (emphasis added).
(137.) See, e.g., Hart v. Elec. Arts, Inc., 717 F.3d 141, 152 (3d Cir. 2013) (noting that Zacchini "sets the stage for our analysis of three systematized analytical frameworks that have emerged as courts struggle with finding a standardized way for performing this balancing inquiry").
(138.) See Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 799 (Cal. 2001).
(139.) Id. at 806-08.
(140.) Id. at 808.
(141.) Id. at 807.
(142.) Id. at 808. The Transformative Use Test in this way gives preference to the labor theory of justification for the right of publicity. See supra Part I.B.1.a.
(143.) In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1274 (9th Cir. 2013).
(144.) See id.
(145.) Comedy III Prods., 106 P.3d at 811 ("[The artist's] undeniable skill is manifestly subordinated to the overall goal of creating literal, conventional depictions of The Three Stooges so as to exploit their fame. Indeed, were we to decide that [the] depictions were protected by the First Amendment, we cannot perceive how the right of publicity would remain a viable right other than in cases of falsified celebrity endorsements.").
(146.) No Doubt v. Activision Publ'g, Inc., 122 Cal. Rptr. 3d 397, 411 (Ct. App. 2011) ("[T]he avatars perform rock songs, the same activity by which the band achieved and maintains its fame. Moreover, the avatars perform those songs as literal recreations of the band members.").
(147.) In re NCAA, 724 F.3d at 1276 ; Hart v. Elec. Arts, Inc., 717 F.3d 141, 170 (3d Cir. 2013).
(148.) Hilton v. Hallmark Cards, 599 F.3d 894, 911 (9th Cir. 2009).
(149.) Winter v. DC Comics, 134 Cal. Rptr. 2d 634, 641 (Cal. 2003); see also ETW Corp. v. Jireh Publ'g, Inc., 332 F.3d 915, 938 (6th Cir. 2003) (finding that an artist's work combined images of a celebrity to describe a significant event in sports history and to convey a message about that event).
(150.) Kirby v. Sega of Am., Inc., 50 Cal. Rptr. 3d 607, 616 (Ct. App. 2006) ("[The avatar] is more than a mere likeness or literal depiction of [the singer]."); Noriega v. Activision/Blizzard, Inc., No. BC551746, slip op. at 5 (Cal. Super. Ct. Oct. 27, 2014) ("The complex and multifaceted [video] game is a product of defendant's own expression, with de minimis use of [the former Panama military dictator's] likeness.").
(151.) 255 F.3d 1180, 1189 (9th Cir. 2001).
(152.) See id. at 1184 n.2.
(153.) See Noriega, No. BC551746, slip op. at 5 n.3 ("Because the video game is transformative, economic considerations are not relevant.").
(154.) See id. at 2 & n.2.
(155.) Doe v. TCI Cablevision, 110 S.W.3d 363, 374 (Mo. 2003) (en banc).
(156.) Lee, supra note 12, at 500.
(157.) Doe, 110 S.W.3d at 374.
(159.) See, e.g., Hart v. Elec. Arts, Inc., 717 F.3d 141, 154 (3d Cir. 2013).
(161.) See C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077, 1096 n.26 (E.D. Mo. 2006); see also McCarthy, supra note 65, [section] 8:82 (condemning the test as "wrong," but as applied only to expressive and artistic uses).
(162.) Rogers v. Grimaldi, 875 F.2d 994, 1004-05 (2d Cir. 1989); see Hart, 717 F.3d at 154.
(163.) See Hart, 717 F.3d at 154 n.17.
(164.) Rogers, 875 F.2d at 996-97.
(165.) Id. at 1004-05.
(166.) Parks v. LaFace Records, 329 F.3d 437, 461 (6th Cir. 2003). Despite the Sixth Circuit's seeming adoption of the Rogers Test in Parks, the court opted to apply the Transformative Use Test within the same year. ETW Corp. v. Jireh Publ'g, Inc., 332 F.3d 915, 936 (6th Cir. 2003) (noting that the transformative elements test adopted by the Supreme Court of California "will assist us in determining where the proper balance lies between the First Amendment" and Tiger Woods's intellectual property rights).
(167.) Restatement (Third) of Unfair Competition [section][section] 46-47 (1995).
(168.) Id. [section] 47 cmt. c.
(169.) See In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1280 (9th Cir. 2003); Hart v. Elec. Arts, Inc., 717 F.3d 154, 158 (3d Cir. 2013).
(170.) See supra Part II.A-B.
(171.) Despite the 1677 cases Westlaw returned in winter 2014 with the search term, "right of publicity," a subsequent search using both the terms "commercial speech" and "right of publicity' yielded only ninety-eight cases (5.8 percent of right of publicity cases). Of those cases, roughly twenty affirmatively found the speech in question to be commercial in nature, but only one case found the speech at issue to be protected by the First Amendment. Even that case did not couch its holding in commercial speech reasoning. See Hebrew Univ. of Jerusalem v. Gen. Motors, 903 F. Supp. 2d 932, 942 (C.D. Cal. 2012). In Hebrew Univ. of Jerusalem, the U.S. District Court for the Central District of California considered a university's claim of exclusive control over Albert Einstein's name and likeness as a beneficiary under his will. Id. at 932-33. Noting in a footnote that General Motors's speech was commercial speech protected "to some extent," the court proceeded to find that the university had no right of publicity claim. Id. at 941 n.7. But the court did not anchor its holding in commercial speech reasoning. Instead, it prohibited the action by capping the maximum duration for claiming infringement of one's right of publicity at fifty years. Id. at 942.
(172.) Compare Yeager v. Cingular Wireless LLC, 673 F. Supp. 2d 1089, 1099 (E.D. Cal. 2009), with Joe Dickerson & Assocs. v. Dittmar, 34 P.3d 995, 1003 (Colo. 2001) (en banc). In Dickerson, a convicted felon plaintiff had no publicity claim against a detective agency that touted its role in her investigation and prosecution. Dickerson, 34 P.3d at 1004. The agency's use of her name in its advertising newsletter "related to a matter of public concern" and was "primarily noncommercial" in nature. Id. In Yeager, however, an emergency preparedness pamphlet that used the name of the plaintiff, a legendary test pilot, was "not purely informational in nature" and was "properly characterized as commercial speech." Yeager, 673 F. Supp. 2d at 1097, 1099.
(173.) See infra Part III.C. In a search of cases during winter 2014 citing Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), only thirty-six cases contained the terms "right of publicity" or "publicity rights." In publicity rights cases, when courts did find the speech at issue to be "commercial," it was unprotected. See, e.g., Bosley v. Wildwett.com, 310 F. Supp. 2d 914,928-29 (N.D. Ohio 2004); see also White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1399 (9th Cir. 1992); Yeager, 673 F. Supp. 2d at 1097; Herman Miller, Inc. v. A. Studio S.L.R., No. 1:04-CV-781, 2006 WL 13079404, at *9-10 (W.D. Mich. May 9, 2006). Most of the speech was deemed to be noncommercial, largely without thorough analysis. See, e.g., ETW Corp. v. Jireh Publ'g, Inc., 332 F.3d 915, 925 (6th Cir. 2003) (protecting expressive speech); Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959, 970 (10th Cir. 1996) (protecting expressive speech); Lane v. Random House, Inc., 985 F. Supp. 141, 152 (D.D.C. 1995) (protecting incidental speech); Rogers v. Grimaldi, 695 F. Supp. 112, 120-21 (S.D.N.Y. 1988) (protecting expressive speech); Taylor v. Nat'l Broad. Co., No. BC110922, 1994 WL 762226 (Cal. Super. Ct. Sept. 29, 1994) (protecting expressive speech).
(174.) See Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014); Dryer v. Nat'l Football League, No. 09-2182 (PAM/FLN), slip op. (D. Minn. Oct. 10, 2014).
(175.) White v. Samsung Elecs. Am., Inc., 989 F.2d 1512 (Kozinski, J., dissenting).
(176.) Id. at 1520.
(177.) Id. Judge Kozinski's disdain for his court's reverence of publicity rights is further evident in Wendt v. Host Inti. 197 F.3d 1284,1288-89 (9th Cir. 1999) (Kozinski, J., dissenting) ("[W]e again let the right of publicity snuff out creativity.... We pass up yet another opportunity to root out this weed. Instead, we feed it Miracle-Gro.").
(178.) Zacohini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977).
(179.) Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976).
(180.) See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357, 371-72 (2002) (rejecting regulations under Central Hudson's final prong, finding that alternative, less restrictive regulations on commercial speech were available); Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173, 188-89 (1999); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507 (1996) (plurality opinion); Rubin v. Coors Brewing Co., 514 U.S. 476, 490-91 (1995).
(181.) See supra Part II.A-B.
(182.) Compare United States v. Alvarez, 132 S. Ct. 2537, 2445-47 (2012) (holding as unconstitutional the Stolen Valor Act, which criminalized false claims of receiving military decorations), with Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 563 (1980) ("The government may ban forms of communication more likely to deceive the public than to inform it.").
(183.) See infra Part III.A.
(184.) See, e.g., supra Part II.B.1.
(185.) See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 575 (1977).
(186.) Zacchini, 433 U.S. at 575.
(187.) See, e.g., supra Part II.A.1.
(188.) See supra Part II.A.
(189.) See, e.g., supra notes 111-14, 130-32 and accompanying text.
(190.) See infra Part III.B.
(191.) Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976).
(192.) Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978).
(193.) Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980).
(194.) In more recent years this very same test has received a far more protective application. See supra Part II.A-B.
(195.) See, e.g., Metromedia, Inc. v. San Diego, 453 U.S. 490, 507-11 (1981) (deferring to the city's judgment in holding that an ordinance prohibiting billboards met Central Hudson requirements). In the years between Virginia State Board of Pharmacy and Central Hudson, the level of protection that the Court extended to commercial speech was also quite limited. See, e.g., Friedman v. Rogers, 440 U.S. 1, 12-14 (1979); Ohralik, 436 U.S. at 447.
(196.) See supra Part II.A-B.
(197.) Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 776 (1976) (Stewart, J., concurring). In reality, the inquiry is somewhat more complex. But ultimately, it comes down to some sort of focus on commercial motivation. See Bolger v. Youngs
Drug Prods. Corp., 463 U.S. 60, 66-67 (1983) (setting up a three-factor test to determine whether speech is to be deemed commercial). For an example of how complex the inquiry can become, see Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002). For a detailed discussion of Bolger, see Martin H. Redish, Product Health Claims and the First Amendment: Scientific Expression and the Twilight Zone of Commercial Speech, 43 VAND. L. REV. 1433, 1444-53 (1990).
(198.) See generally Va. State Bd. of Pharmacy, 425 U.S. at 776.
(199.) See id.
(200.) See id.
(201.) See RALPH NADER, UNSAFE AT ANY SPEED: THE DESIGNED-lN DANGERS OF THE American Automobile (1965).
(202.) Cf. Kasky, 45 P.3d at 258-60. The California Supreme Court reasoned that Nike's statements were commercial speech "[bjecause in the statements at issue here Nike was acting as a commercial speaker, because its intended audience was primarily the buyers of its products, and because the statements consisted of factual representations about its own business operations." Id. at 259.
(203.) See also Ronald J. Krotoszynski, Jr., Into the Woods: Broadcasters, Bureaucrats, and Children's Television Programming, 45 Duke L.J. 1193, 1217-18 (1996) (discussing Andy Warhol's Campbell's soup cans and arriving at the conclusion that "it is impossible to maintain a viable theory of commercial speech without substantial reliance on an intent-based test").
(204.) Robert C. Post, The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1, 18 (2000). At another point in his analysis, Post asserts that his proposed dichotomy "is not ultimately a judgment about the motivations of particular persons, but instead about the social significance of a certain kind of speech." Id. at 12. However, the reason he believes that commercial speech lacks sufficient "social significance" is "because we most naturally understand persons who are advertising products for sale as seeking to advance their commercial interests rather than as participating in the public life of the nation." Id. Hence, we have come full circle because Post defines "social significance" in terms of speaker motivation. Id. For a more detailed critique of Post's theory, see MARTIN H. REDISH, The ADVERSARY FIRST AMENDMENT: Free Expression and the Foundations of American Democracy 43-74 (2013).
(205.) See ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF the People 42 (1965).
(206.) Indeed, some respected scholars have grounded their theories of the First Amendment on the assumption that the only relevant consideration for purposes of First Amendment protection is the listener, not the speaker. See id. at 56-57. Although we believe that this theory seriously understates the First Amendment benefit to the speaker, it surely is correct in recognizing the constitutional value to the recipient of expression. At a later point in his scholarship, Post recognized the First Amendment value of commercial speech in its conveyance of information about commercial products and services. See Post, supra note 204, at 28. The level of protection he extends such expression, however, is still reduced because of its failure to contribute directly to public discourse. See id. at 27.
(207.) See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976) ("[A] particular consumer's interest in the free flow of commercial information ... may be as keen, if not keener by far, than his interest in the day's most urgent political debate."); see also Edenfield v. Fane, 507 U.S. 761, 767 (1993) ("The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish.").
(208.) See Post, supra note 204, at 27.
(209.) 851 F. Supp. 2d 1102, 1104 (N.D. 111. 2012), rev'd, 743 F.3d 509 (7th Cir. 2014).
(211.) Id. at 1109.
(212.) Id. at 1111.
(213.) Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 520 (7th Cir. 2014).
(214.) In Jewel, Judge Feinerraan identified this point when he noted how the conclusion regarding whether speech is commercial "rests in part on judgments regarding how reasonable readers would view the page." Jewel, 851 F. Supp. 2d at 1111. When critical data are consumer surveys and psychological analyses, however, such determinations quickly regress toward battles of the experts.
(215.) See infra Part III.A.2.
(216.) 131 S. Ct. 2653, 2656 (2011). For a more detailed discussion of Sorrell, see REDISH, supra note 204, at 116-17.
(217.) See Sorrell, 131 S. Ct. at 2667.
(218.) Id. at 2663.
(219.) Id. (internal quotation marks omitted).
(220.) Compare Yeager v. Cingular Wireless LLC, 673 F. Supp. 2d 1089, 1099 (E.D. Cal. 2008), with Joe Dickerson & Assocs. v. Dittmar, 34 P.3d 995, 1004 (Colo. 2001) (en banc).
(221.) See supra notes 167-68 and accompanying text.
(222.) See supra Part I.B.1.a.
(223.) See Sorrell, 131 S. Ct. at 2665.
(224.) See, e.g., Brandenburg v. Ohio, 385 U.S. 444, 447 (1969) (per curiam).
(225.) Recall that our baseline hypothetical includes only a commercial advertiser's use of a person's name and/or likeness, without consent, to convey truthful information about that person's use of the advertiser's product.
(226.) Compare White v. Samsung Elecs. Am., Inc., 971 F.2d 1395,1396 (9th Cir. 1992), with Joe Dickerson & Assocs. v. Dittmar, 34 P.3d 995, 1004 (Colo. 2001) (en banc).
(227.) See supra Part II.
(228.) See supra Part II.A.
(229.) See supra Part III.A.
(230.) N.Y. Times Co. v. Sullivan, 376 U.S. 254, 266 (1964).
(231.) In fairness, Justice Brennan was speaking of an advertisement concerning a matter of political concern. See id. at 256. However, given that commercial speech today is not defined by the subject of the expression, but rather by the commercial motivation of the speaker, that
factor should play no role in determining the relevance of Justice Brennan's statement to other contexts. See supra Part III.A.1.
(232.) See supra Part III.A.2.
(233.) See Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2663 (2011).
(235.) Id. at 2664.
(236.) See supra Part II.
(237.) N.Y. Times Co. v. Sullivan, 376 U.S. 254, 266 (1969).
(238.) See MEIKLEJOHN, supra note 205, at 19-21.
(239.) In fact, political advertising has been borrowing strategies from commercial advertising since the 1950s. Andrew Rosenthal, For the Idyllic Political Ad, A Fadeout, N.Y. Times, June 21, 1987, at 22; see also Arthur Sandburg, Creating Effective Political Ads, in Lights, Camera, Campaign! Media, Politics, and Political Advertising 1-2 (David A. Schultz ed., 2004) (comparing successful product ads and political ads).
(240.) See supra Part I.B.l.
(242.) Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2742 (2011).
(243.) See, e.g., Branzburg v. Hayes, 408 U.S. 665, 681-83 (1968). In Branzburg, the Court rejected a reporter's argument that he should be immune from the obligation to reveal the criminal conduct of his confidential sources after a grand jury subpoena. Id. at 692. The Court reasoned that "[i]t has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." Id. at 684; see also First Nat'l Bank v. Belloti, 435 U.S. 765, 782-83 (1978) ("[T]he press does not have a monopoly on either the First Amendment or the ability to enlighten.... Similarly, the Court's decisions involving corporations in the business of communication or entertainment are based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and dissemination of information and ideas." (citations omitted))
(244.) See First Nat'l Bank, 435 U.S. at 783.
(245.) See supra Part II.A.
(246.) See supra Part II.A.
(247.) Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 564 (1980).
(248.) Compare Thompson v. W. States Med. Ctr., 535 U.S. 357, 358 (2002), with Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 329 (1986).
(249.) Cent. Hudson, 447 U.S. at 566.
(254.) Id. Despite the seeming weaknesses of the moral and economic government interests advanced by publicity rights, this prong has not shown to be easily surmountable for commercial speech proponents. See supra Part I.B.
(255.) Cent. Hudson, 447 U.S. at 564.
(256.) Id. at 566.
(257.) Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).
(258.) Cent. Hudson, 447 U.S. at 566.
(259.) See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 528 (2001).
(260.) See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002); Lorillard, 533 U.S. at 525-26; Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173 (1999); 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).
(261.) Bd. of Trs. v. Fox, 492 U.S. 469, 479 (1989).
(262.) See Greater New Orleans Broad. Ass'n, 527 U.S. at 174; Discovery Network, Inc., 507 U.S. at 411.
(263.) 507 U.S. at 410.
(264.) Id. at 425.
(265.) 527 U.S. at 173.
(266.) Id. at 189; see also Rubin v. Coors Brewing Co., 514 U.S. 476, 488 (1995) (holding a prohibition on beer labels from displaying alcohol content unconstitutional "because of the overall irrationality of the Government's regulatory scheme" in light of the law's permission for the printing of alcoholic content on labels on distilled spirits).
(267.) Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2656 (2011); see supra Part III.A.2.
(268.) See supra Part I.B.3.
(269.) City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425 (1993).
MARTIN H. REDISH, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law. This Article benefited greatly from the valuable input of Andrew Koppelman--even though he may disagree with some or all of its conclusions.
KELSEY B. SHUST, B.A., 2010 University of Iowa; J.D., 2014 Northwestern University.
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|Title Annotation:||II. The Right of Publicity and the First Amendment Collide B. "Expressive" Speech Subjected to Balancing Tests through Conclusion, with footnotes, p. 1472-1500|
|Author:||Redish, Martin H.; Shust, Kelsey B.|
|Publication:||William and Mary Law Review|
|Date:||Mar 1, 2015|
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