Massachusetts
How Brown v. Electronic Arts, Inc. applies in Massachusetts: state-specific rules, key cases, and bar exam notes for Intellectual Property.
Massachusetts applies the right of publicity in a manner consistent with the First Amendment, similarly to the approach taken in Brown v. Electronic Arts. The state recognizes that artistic works may enjoy protection, but also emphasizes that the use of an individual's likeness without consent may infringe upon personal rights.
In Massachusetts, the right of publicity is grounded in both common law and statutory law, prohibiting unauthorized commercial use of an individual's name or likeness, especially when such use is not transformative.
The court held that a promise of confidentiality in journalism is enforceable and that breach of that promise constitutes an actionable tort.
The court upheld an individual's right to sue for misappropriation of their likeness in commercial contexts, affirming the importance of personal autonomy.
The court recognized that even implied endorsement of a product through the use of an individual’s likeness can lead to potential liability under right of publicity theories.
While federal law under the First Amendment provides broad protections for artistic expression, Massachusetts law tends to offer a more robust defense against unauthorized commercial use of likenesses. The focus on personal rights may lead to more stringent outcomes in Massachusetts compared to some federal interpretations, which might prioritize free speech over commercial misappropriation.
Understanding the application of Brown in the context of Massachusetts law could be crucial for the bar exam, particularly regarding questions involving the right of publicity and likeness. Candidates should be prepared to discuss the nuances of both consent and transformation in commercial contexts.