California
How Brown v. Electronic Arts, Inc. applies in California: state-specific rules, key cases, and bar exam notes for Intellectual Property.
California recognizes the transformative use test from Brown v. Electronic Arts, Inc. to determine whether the use of an individual’s likeness in video games constitutes fair use. This approach factors both the purpose of the use and the nature of the expression involved.
In California, the transformative use doctrine dictates that the use of a person’s likeness must add significant new expression or meaning to be considered fair use.
The court held that the reproduction of a celebrity’s likeness on a t-shirt did not constitute transformative use as it did not add new expression beyond mere likeness.
The court found that the use of a character bearing resemblance to a real person was transformative, as it contributed to a larger story and artistic narrative.
The court ruled that the unauthorized use of a celebrity's likeness as a promotional image was not transformative, emphasizing the necessity of altering the original work.
While federal law incorporates the fair use doctrine, California’s emphasis on transformative use provides a narrower interpretation that focuses on artistic expression. California courts often require a more substantial alteration of the original likeness than federal courts.
Questions on the California bar exam may involve the application of the transformative use doctrine or issues related to the use of a person’s likeness in commercial works.