The right of publicity affects a vast range of fully constitutionally protected speech. Right of publicity lawsuits are routinely brought over books, films, songs, paintings and prints (in traditional media or on T-shirts or cards), and video games that mention someone’s name, likeness, or other “attributes” “of identity.”

The First Amendment must often protect such references to people, whether in news, entertainment, or art. Courts throughout the country have therefore recognized First Amendment defenses in many right of publicity cases involving expressive works.

Unfortunately, there are now five different First Amendment tests that lower courts use in right of publicity cases (setting aside cases involving commercial advertising, which is less constitutionally protected than other speech). [Footnote: Amici express no opinion on what First Amendment protections should apply in the context of commercial advertisements.] Unsurprisingly, these different tests often lead to inconsistent results, which leave creators and publishers uncertain about what they may say.

For instance, say you are writing a comic book, and want to name a fictional character after a real person. You read Winter v. D.C. Comics, 69 P.3d 473 (Cal. 2003), which states you are free to do so. But then you read Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003), which allowed a right of publicity claim against an author who did so; Doe eventually led to a $15 million verdict against the author. Doe v. McFarlane, 207 S.W.3d 52, 56 (Mo. Ct. App. 2006).

Or say you want to create a computer sports game that includes players based on real athletes. The Eighth Circuit said this is just fine, when athletes’ names and statistics were used in an online fantasy sports game. C.B.C. Dist. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007). The Third and Ninth Circuits said no, when athletes’ general body types, team affiliations, and player numbers were used in sports video games. But the First Amendment draws no distinctions between fantasy sports games and video sports games.

Or say you want to make cards or prints containing a famous person’s picture, coupled with additional material. The Sixth Circuit said this was protected by the First Amendment, when an artist sold prints depicting Tiger Woods, with some other golfers in the background. ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003). The Ninth Circuit took a different view when a card company sold greeting cards depicting Paris Hilton together with a joke playing off her television persona. Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2009). Yet there is no First Amendment line between cards and prints, or between juxtaposing sports celebrities with each other and juxtaposing a TV celebrity with jokes about her.

This is the sort of uncertainty that leads speakers to “steer far wide[] of the unlawful zone” and change their speech to avoid risking ruinous litigation — even when most courts would see their speech as constitutionally protected. Grayned v. City of Rockford, 408 U.S. 104, 109 (1972). This Court should agree to hear the case and resolve the split among lower courts.