Intellectual Property
724 F.3d 1235 (9th Cir. 2013)
Study notes for Brown v. Electronic Arts, Inc.: professor notes, cold call prep, exam angles, and memory aids.
The use of a celebrity's likeness in video games can be protected under the First Amendment if transformative.
In Brown v. Electronic Arts, the Ninth Circuit addressed the tension between the right of publicity and First Amendment protections. The court emphasized that artistic expression, particularly in the realm of video games, is afforded substantial protection under the First Amendment. This case illustrates how the use of a celebrity's likeness in a commercial product like a video game can be deemed transformative when it serves a significant expressive purpose. Professors may highlight how this ruling sets a precedent for future cases involving the portrayal of public figures in various media formats.
Additionally, the decision invites discussion about the balance of rights between individuals and the commercial interests of corporations. While the ruling affirms artistic freedom, it also raises questions about the limits of that freedom in relation to individuals’ rights to control the use of their identity, especially in increasingly realistic and immersive media environments.
EA = Expression Allowed.
| Case | Distinction |
|---|---|
| Hannah Montana v. Bowers | In Hannah Montana, the use of the likeness was deemed non-transformative because it did not add significant creative expression; thus, it violated the right of publicity. |
| Cardtoons, L.C. v. Major League Baseball Players Ass'n | Cardtoons dealt with parodic use rather than realistic representation, illustrating how the context of use can shift the analysis of First Amendment protections. |
Protecting artistic expression allows for cultural enrichment and supports innovation in entertainment and media industries.
Allowing broad First Amendment protections may erode individual rights to control one's own image, especially for public figures who deserve some recognition of their economic interests.
In exams, this case may be tested with a focus on the interplay between the right of publicity and First Amendment rights, especially in creative works like video games.