The “Transformative” Test and the Right of Publicity: No Doubt About it – You’ve Got to Have...

The “Transformative” Test and the Right of Publicity:No Doubt About it – You’ve Got to Have Hart

Jody BlankeMercer UniversityProfessor of Computer Information Systems and Law

A Picture is Worth a Thousand Words

Band Hero

Band Hero Youtube Videos Just a Girl - No Doubt Wannabe - Gwen Stefani and Taylor Swift Honky Tonk Women - Gwen Stefani and Taylor Swift Honky Tonk Women - An All-Gwen Stefani Band with a Really

Bad Singer

NCAA Football

NCAA Football

NCAA Football

NCAA Football

Ryan Hart

The Right of Privacy

Pavesich (1905)

The Right of Publicity

Haelan (1953)

California Right of Publicity

CAL. CIV. CODE § 3344(a) (2011) Any person who knowingly uses another's name, voice,

signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. . .

California Right of Publicity

CAL. CIV. CODE § 3344.1 (2011) (a)(1) Any person who uses a deceased personality's name,

voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision (c), shall be liable for any damages sustained by the person or persons injured as a result thereof. . .

(g) An action shall not be brought under this section by reason of any use of a deceased personality's name, voice, signature, photograph, or likeness occurring after the expiration of 70 years after the death of the deceased personality.

Comedy III v. Saderup (2001)

Zacchini (S. Ct. 1977)

“Human Cannonball”

Estate of Presley v. Russen (1981)

Campbell v. Acuff-Rose (1994)

Cardtoons (1996)

Andy Warhol

ETW v. Jireh Publishing (2000)

Winter v. DC Comics (2001)

Doe a/k/a Tony Twist v. TCI (2004)

Kirby v. Sega (2006)

Kirby v. Sega Youtube Videos     Groove is in the Heart - Deee-Lite (1991)     What is Love? - Deee-Lite (1991)     Space Channel 5 - Introducing Ulala

Hilton v. Hallmark Cards (2009)

Hoffman v. Capital Cities (2001)

Fantasy Sports Cases

C.B.C. v MLB Advanced Media (2006) Gionfriddo v. MLB (2001)

CBS Interactive v. NFLPA (2009)

Recent Video Game Cases

Keller v. Electronic Arts (2010) No Doubt v. Activision (2011) Hart v. Electronic Arts (2011)