Christopher B. Seaman, Comment on “Groove is in the Hart”: A Workable Solution for Applying the Right of Publicity to Video Games, 72 Wash. & Lee L. Rev. 399 (2015).
Washington and Lee Law Review - Video Games
by Jordan M. Blanke
The challenge of finding a workable solution for applying the right of publicity is a formidable one because it implicates not only a delicate balance between First Amendment rights and the rights of publicity, but also the complications of varying state laws. The best of the tests developed by the courts so far—the transformative use test—was borrowed from copyright law and itself reflects a careful balance between First Amendment and copyright interests. Additionally, because of dramatic progress in technology, it is likely that in the near future this balancing will often involve not only the rights of publicity and the First Amendment but also copyright law as well.
by R. Garrett Rice
This Note reexamines the three major existing alternatives and concludes that none of them is an effective standard that courts can apply consistently. It addresses this problem by proposing an alternative test that will be easier for courts to apply consistently, will protect video game producers’ reasonable expectations, and is designed specifically for balancing the right of publicity with the First Amendment in the video game context.