The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona

Summary. The right of publicity gives a person control over the commercial use of their name, likeness, and voice, and the First Amendment guarantees everyone else the freedom to write, film, draw, and joke about real people; this article explains where the two meet and who wins. It starts with Zacchini, the only Supreme Court decision on the subject, and then works through the four competing tests the lower courts use: the transformative use test of Comedy III and the video game cases, the Rogers test and what Jack Daniel's did to it, Missouri's predominant use test, and the ad hoc balancing of Cardtoons, ETW, and the fantasy sports decisions. It then covers the statutory newsworthiness and public affairs exemptions in California, New York, and other states, the docudrama cases from Sarver to de Havilland, the commercial speech line drawn in Jordan v. Jewel, copyright preemption, false endorsement as a parallel claim, Section 230, anti-SLAPP motions, and damages. Three worked examples (a streaming docudrama about a living CEO, a mobile game with lookalike athletes, and a brand's social media post congratulating a celebrity) show how the analysis runs in practice for both the creator and the person depicted. It closes with strategy for each side, common mistakes, an FAQ, and practical takeaways.

In 1972 a television crew filmed Hugo Zacchini being shot out of a cannon at an Ohio county fair and ran the whole fifteen-second act on the evening news. Zacchini sued, and five Justices of the Supreme Court agreed that the First Amendment did not protect the station. That is still the only time the Court has ruled on the right of publicity, and nearly fifty years later the lower courts are still arguing about what it meant. In the meantime, a charcoal portrait of the Three Stooges lost, a comic book that turned two blues musicians into half-worm villains won, a football video game that got the players' heights and hometowns right lost, a painting of Tiger Woods won, and a grocery chain that congratulated Michael Jordan on a magazine page lost. If you are trying to clear a biopic, ship a game, publish a parody, or decide whether to sue over one, you need to know why.

The short answer

The right of publicity is a state-law right (statutory in about half the states, common law in most of the rest) to control the commercial use of your identity: name, likeness, voice, signature, and in some states anything else that evokes you. The First Amendment protects speech about real people, and most uses of a real person's identity in a book, film, song, painting, game, or news report are speech. The two rights collide constantly, and the courts have not agreed on a single way to resolve the collision.

The practical rule that emerges from the cases is this. If the identity is used to sell something other than the work itself (an advertisement, an endorsement, a product), the person wins almost every time, and no amount of creativity in the ad changes that. If the identity is used inside an expressive work (a film, a novel, a documentary, a song, a comic, a painting, a game) and the work says something about the person or uses them as raw material for something new, the creator wins almost every time. The hard cases live in the middle: literal depictions inside expressive products, where the person's likeness is the product's selling point. There the outcome depends on which test the court applies, and which test applies depends on where you are sued.

Three things follow. First, the question "is this protected speech?" is answered mostly by what the work is and how the person is used in it, not by the medium or the defendant's profit motive. Second, the defense is usually raised and often won at the pleading stage, frequently on an anti-SLAPP motion that shifts fees if the plaintiff loses. Third, the creator's real exposure in a docudrama or biopic is usually defamation and false light, not publicity, so the clearance process has to run on both tracks. For the elements of the underlying claim, start with Right of Publicity Basics; for the statutory patchwork and digital replicas, see The Right of Publicity: Name, Image, Likeness, Digital Replicas, and the Limits of Owning Yourself. This article is about the constitutional collision and the tests.

Why the two rights collide

The right of publicity was born as a property right rather than a privacy right. In Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), Judge Jerome Frank recognized that a baseball player had a transferable "right in the publicity value of his photograph," independent of any dignitary interest in being left alone. Once identity became a thing that could be licensed, every unlicensed use became a potential taking, and the list of unlicensed uses includes every biography, news photograph, satirical cartoon, and historical novel ever made.

The First Amendment protects all of those. Motion pictures, comic books, paintings, and video games are speech. The Supreme Court said so about games specifically in Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011), where it held that the interactive, commercial, and sometimes violent nature of games does not lower their protection. Satire of a public figure is protected even when it is cruel, as Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) held for a parody advertisement describing the plaintiff's first sexual encounter in an outhouse. And speech does not lose protection because it is sold for money. When New York tried to censor a film, the Court answered that books, newspapers, and magazines are "published and sold for profit" too, and held that motion pictures are protected expression, in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952). The Court has repeatedly refused to treat the profit motive as converting expression into commerce.

The Restatement (Third) of Unfair Competition captures the resulting line. Section 46 defines the tort as appropriating "the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade." Section 47 then defines "for purposes of trade" to exclude use "in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses." Comment c to section 47 explains the reasoning: the right of publicity is justified by the need to prevent unjust enrichment from commercial exploitation, and that rationale has little force when the use is expressive. Sections 48 and 49 address injunctions and monetary relief. Most of the litigation described below is an argument about where the "purposes of trade" line sits in cases the Restatement drafters did not anticipate, chiefly realistic depictions inside interactive entertainment.

Zacchini: the only Supreme Court case, and why it decides less than people think

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), is cited in every brief on both sides, so it is worth being precise about what it held. The Ohio Supreme Court had ruled that the First Amendment privileged the news broadcast of Zacchini's act. The United States Supreme Court reversed, 5 to 4, holding that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without consent. Justice White's opinion rested on an analogy to copyright and patent: the broadcast of the whole performance "poses a substantial threat to the economic value of that performance," because the public would have little reason to pay to see the act after watching it on the news. The Court distinguished the defamation and false-light cases, in which the state's interest is reputational, by stressing that Ohio's interest here was in protecting the performer's incentive to create, "the same consideration" that "underlies the patent and copyright laws."

What Zacchini did not decide is almost as important. It did not involve a name or likeness used in an advertisement, or a depiction inside a creative work; it involved the appropriation of the performance itself, whole. It did not announce a balancing test. It expressly declined to say where the line falls for anything less than the entire act ("[w]herever the line in particular situations is to be drawn"), and it said that if the station had merely reported that Zacchini was performing and described or commented on the act, "with or without showing his picture," it would have had "a very different case." Justice Powell, writing for three dissenters, would have protected routine news coverage unless it was a subterfuge for commercial exploitation; Justice Stevens dissented separately because he could not tell whether the Ohio court had rested on federal or state grounds. The decision is therefore strongest for plaintiffs whose claim resembles Zacchini's (a performance taken in its entirety) and weakest for plaintiffs objecting to being referenced, portrayed, or parodied. The Ninth Circuit made exactly this point in Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016), discussed below, when it held that a soldier whose life story informed The Hurt Locker was not in Zacchini's position because he had made no investment in a performance that the film appropriated.

The statutes: where the exemptions live

Before any constitutional test is reached, the statute itself usually carves out expressive uses. A court that can dispose of a case on a statutory exemption will often do so and never reach the First Amendment. The main provisions:

Two observations about the table. First, in states with a specific exemption, the key question is often definitional: is a video game an "audiovisual work"? Is a congratulatory advertisement "news"? Is a T-shirt a "single and original work of art"? The California Supreme Court held in Comedy III that mass-produced lithographs and T-shirts were not, a holding that drives much of the merchandising case law. Second, the exemptions are limits on the statutory claim, not on the common-law claim where one exists. In California, a defendant must defeat both. The common-law claim has no textual exemption, so there the First Amendment analysis is unavoidable.

For the Tennessee amendments and the federal proposals, see Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law. For the mechanics of licensing when a license is the better path, see Licensing and Protecting Name, Image, and Likeness: A Practical Guide.

The transformative use test: California's answer, and why the video games lost

Comedy III and the "raw materials" question

The transformative use test comes from Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001). Gary Saderup drew a skilled, realistic charcoal portrait of the Three Stooges and sold it as lithographs and silkscreened T-shirts. The owner of the Stooges' postmortem rights sued under what is now Cal. Civ. Code § 3344.1. The California Supreme Court borrowed the "transformative" idea from the first fair use factor in 17 U.S.C. § 107, and asked whether the celebrity likeness is one of the "raw materials" from which an original work is synthesized, or whether the depiction is "the very sum and substance of the work in question." Put another way: has the product been so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness?

The court added a subsidiary question that has done a great deal of work since: does the marketability and economic value of the work derive primarily from the fame of the person depicted? If it does, the work is probably not transformative. Saderup lost, because his portraits were literal, conventional depictions whose value came from the Stooges, not from anything he added. The court took pains to say that Andy Warhol's silkscreens of Marilyn Monroe might come out the other way, since Warhol's distortions carried a comment on celebrity itself. Note also that the court treated the test as an affirmative defense, and that it was a defense about the work, not about the medium: a T-shirt can be protected art, and a painting can be unprotected merchandise.

Winter and Kirby: distortion and fantasy win

Two years later, Winter v. DC Comics, 30 Cal. 4th 881 (2003), showed what transformation looks like. A Jonah Hex comic featured "Johnny and Edgar Autumn," pale, long-haired, half-worm villains who were unmistakably the albino blues musicians Johnny and Edgar Winter. The court held the depictions transformative as a matter of law and affirmed summary judgment for the publisher: the brothers were "distorted for purposes of lampoon, parody, or caricature" and placed in a larger story that was the authors' own. It also held that how the comic was marketed did not matter much; the inquiry looks at the work itself.

Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47 (2006), extended the protection to games. Kierin Kirby, the Deee-Lite singer known as Lady Miss Kier, claimed that "Ulala," the dancing space reporter in Space Channel 5, was her. The Court of Appeal agreed there was a triable question of resemblance (the hair, the platform boots, the "ooh la la"), but held the character transformative anyway: a 25th-century reporter fighting dance-crazed aliens is not Kier performing as Kier. Then came the part every plaintiff's lawyer should read twice. Section 3344(a) awards attorney's fees to "the prevailing party," not just to a winning plaintiff, and the court affirmed an award of roughly $608,000 in fees to Sega.

No Doubt, Hart, Keller, and Davis: realism in the person's own field loses

The games that lost had one thing in common: they put a realistic version of the plaintiff in the plaintiff's own line of work. In No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018 (2011), the band had licensed its likeness for Band Hero, but players could unlock the band's avatars and make them perform other artists' songs (including, to Gwen Stefani's evident displeasure, songs sung in a male voice). The court denied Activision's anti-SLAPP motion. The avatars were literal recreations of the band members doing exactly what made them famous, and the game's other creative elements, however elaborate, did not transform the avatars themselves.

The Third Circuit adopted the same test in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013), after surveying and rejecting both the Rogers test and the predominant use test for publicity claims. Ryan Hart had been Rutgers' quarterback, and EA's NCAA Football avatar for Rutgers' quarterback wore his number, matched his height, weight, and home state, and even sported his visor and wristband. The majority held that a digital Hart playing college football in a college football game was not transformative, and that the player's ability to edit the avatar did not change that, because the realistic default was the point. It reversed summary judgment for EA over a dissent by Judge Ambro, who would have weighed the game as a whole.

The Ninth Circuit reached the same result the same summer in Keller v. Electronic Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litigation), 724 F.3d 1268 (9th Cir. 2013), affirming the denial of EA's anti-SLAPP motion against former Arizona State and Nebraska quarterback Sam Keller. The majority refused to apply Rogers to the publicity claim and rejected EA's public interest and public affairs defenses, reasoning that a game is not a news report about football. Judge Thomas dissented, warning that the decision could reach any realistic depiction of a real person in a creative work. Two years later, Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015), applied Keller to retired NFL players on Madden NFL's "historic teams." The avatars had no names, only positions, years, height, weight, skin tone, and skill ratings, and EA argued the use was incidental. The court disagreed: the players were identifiable, and the realism of those rosters was part of what EA was selling.

The litigation ended commercially rather than doctrinally. EA and the NCAA's licensing agent settled the student-athlete claims, EA stopped making college football games for a decade, and when the franchise returned in 2024 it came back with opt-in payments to the players whose likenesses it used. That is the transformative use test working as a price signal: if your product's appeal is a realistic depiction of real people doing what they are famous for, budget for a license.

What the test actually asks, and why it frustrates everyone

Courts applying the test tend to ask four practical questions:

1. Is the person a raw material or the whole point? A person who appears in a larger story with its own characters, setting, and plot is a raw material. A person whose image is the product is not.
2. How literal is the depiction? Caricature, distortion, fantasy settings, and changes of profession push toward protection. Photorealism pushes away.
3. Is the person doing what made them famous? This factor decided No Doubt, Hart, and Keller. Kirby as a space reporter won; No Doubt as a rock band lost.
4. Where does the value come from? If the market buys the work because of the person rather than because of what the author added, the test leans toward the plaintiff.

The frustration is that the test can punish accuracy. A biopic tries to be as realistic as possible, and a literal reading of Comedy III would make every faithful biography actionable. The California Court of Appeal rejected exactly that reading in the de Havilland case discussed below, and courts in practice reserve the realism problem for merchandise and games. Defendants should also expect plaintiffs to invoke Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), which narrowed "transformative" under the Copyright Act by focusing on whether the new use shares the original's purpose. Warhol construes § 107, not the First Amendment, so it does not control the publicity test, but its emphasis on purpose over added aesthetics fits comfortably with Comedy III's question about where the value comes from. For the copyright side, see Copyright Fair Use: The Four Factors, Transformative Use, and What Warhol Changed.

Hilton v. Hallmark: the test is usually a fact question

The test's biggest procedural consequence is that it is often too fact-bound to win early. In Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010), Hallmark sold a birthday card showing Paris Hilton's head on a cartoon waitress's body, under the caption "Paris's First Day as a Waitress," with her catchphrase "That's hot." The Ninth Circuit agreed the card concerned a matter of public interest, so the anti-SLAPP statute applied, but held that Hallmark was not entitled to the transformative use defense as a matter of law. The card used Hilton's own setting from her reality show, and whether Hallmark had added enough was a question for a factfinder. A defense that has to be tried is a defense that settles.

The Rogers test in publicity cases, and what Jack Daniel's did to it

Rogers v. Grimaldi: two tests in one opinion

Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), is famous as a Lanham Act case: Ginger Rogers objected to Federico Fellini's film Ginger and Fred, about two Italian dancers who imitated Rogers and Astaire, and the Second Circuit held that a title using a celebrity's name is not actionable under the Lanham Act unless it has no artistic relevance to the work or explicitly misleads as to source or content. Less remembered is that the court separately addressed Rogers's right of publicity claim. Predicting Oregon law, it held that a movie title using a celebrity's name is not actionable unless the title is "wholly unrelated" to the movie or is "simply a disguised commercial advertisement for the sale of goods or services."

Parks and the Sixth Circuit's relatedness approach

The Sixth Circuit carried that publicity version into Michigan law in Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003). OutKast's song "Rosa Parks" was not about Rosa Parks; its hook ("Ah ha, hush that fuss / Everybody move to the back of the bus") was about the band's rivals. The court held that a reasonable jury could find the title had no artistic relevance to the content, reversed summary judgment for the record company on both the Lanham Act and publicity claims, and sent the case back, where it eventually settled. A district court in the same circuit later used the same standard to reject a band's challenge to a licensed cover version of its hit in Guitar Hero, in Romantics v. Activision Publishing, Inc., 574 F. Supp. 2d 758 (E.D. Mich. 2008).

Why the Third and Ninth Circuits refused to use Rogers for publicity claims

Hart and Keller both declined to apply Rogers to the state publicity claim. Their reasoning: Rogers was built to measure consumer confusion, which is the harm trademark law cares about, while the right of publicity protects the economic value of identity whether or not anyone is confused. A test that asks "did the work explicitly mislead about sponsorship?" will almost always say no, which means it would almost always defeat a publicity claim. On the same day it decided Keller, however, the Ninth Circuit applied Rogers to Jim Brown's Lanham Act false endorsement claim against the same game franchise and affirmed its dismissal, in Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013). The result is a split personality that every games lawyer has to manage: the federal claim gets Rogers, the state claim gets transformative use, and the same avatar can win one and lose the other.

Jack Daniel's and the source-identifier limit

Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), held that Rogers does not apply when the defendant uses the plaintiff's mark as a designation of source for its own goods, there a dog toy shaped like a whiskey bottle. The Court did not decide whether Rogers is otherwise correct, and three Justices joined a concurrence questioning its foundations. The Ninth Circuit promptly applied the limit in Punchbowl, Inc. v. AJ Press, LLC, 90 F.4th 1022 (9th Cir. 2024), holding Rogers inapplicable because the defendant used "Punchbowl" as the name of its own news business, and remanding for an ordinary likelihood-of-confusion analysis.

Jack Daniel's is a Lanham Act decision, so it does not change any state's publicity test. Its practical bite in this field is on the parallel federal claim. If a creator uses a real person's name or image as the brand of the product (an app named after an athlete, a beverage line named after a musician, a game whose logo is a celebrity's face), the creator should assume that Rogers will be unavailable for the § 43(a) claim and that the case will turn on confusion. If the person appears inside the story, Rogers remains available in the circuits that use it. For the full post-Jack Daniel's trademark picture, see Trademark Fair Use: Descriptive Use, Nominative Use, and Expressive Works After Jack Daniel's.

The predominant use test: Missouri's outlier

Missouri took a different path in Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003). Todd McFarlane's Spawn comic introduced a mob boss named Antonio "Tony Twist" Twistelli, and McFarlane said in print that he had named the character after the NHL enforcer Tony Twist. A St. Louis jury awarded Twist $24.5 million; the trial judge set the verdict aside. The Missouri Supreme Court reinstated the claim and adopted what it called a "predominant use" test, drawn from a law review article by practitioner Mark S. Lee: if a product "predominantly exploits the commercial value of an individual's identity," it violates the right of publicity and is not protected by the First Amendment, "even if there is some 'expressive' content in it"; if its predominant purpose is "to make an expressive comment on or about a celebrity," the expressive values weigh more. On retrial a second jury awarded $15 million, and the Court of Appeals affirmed in Doe v. McFarlane, 207 S.W.3d 52 (Mo. Ct. App. 2006).

The test has few friends. Hart called it "subjective at best, arbitrary at worst," because it asks judges to act as "both impartial jurists and discerning art critics," and it has not caught on outside Missouri. But it is the law in Missouri state court, and two features of Twist travel everywhere. First, the defendant's own statements about why it used the name became the plaintiff's best evidence: McFarlane's remarks on the comic's fan-letter page and in a trade magazine interview, plus Spawn-logo hockey pucks, jerseys, and toy Zambonis aimed at Twist's fan base, let the jury find that the name was used to sell. Second, the character had nothing to do with the real Twist except his name and his tough-guy reputation, which is exactly the kind of borrowing that transformative use would usually protect. Same facts, different test, a $15 million difference.

Balancing, facts, and the public domain

Several courts skip the named tests and simply weigh the speech interest against the publicity interest. The approach started with Cardtoons, L.C. v. Major League Baseball Players Association, 95 F.3d 959 (10th Cir. 1996), which involved parody trading cards ("Treasury Bonds" for Barry Bonds, "Ken Spiffy, Jr." of the "Mari-Nerds," and so on). The Tenth Circuit held that the cards violated Oklahoma's publicity statute but that the First Amendment protected them anyway. Its reasoning has been quoted ever since: celebrity parody is social commentary, celebrities already have ample incentive to perform, and the consumer-protection rationale is weak when nobody thinks the players endorsed a card that mocks them.

The Sixth Circuit used a similar weighing, alongside Comedy III, in ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003). Rick Rush's painting The Masters of Augusta showed Tiger Woods in three poses at his 1997 Masters win, with past champions looking down from above, and was sold as limited-edition prints. Over a dissent, the majority held that the painting's informational and creative content outweighed the commercial harm to Woods, and that the Lanham Act claims failed under Rogers. The case is the best authority for artists who depict a real sporting moment, and a caution for anyone who thinks the line between "art print" and "merchandise" is obvious.

Balancing is most decisive when the defendant uses facts. In C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), a fantasy baseball company used players' names and statistics without a license. The Eighth Circuit held that, whatever Missouri's tort required, the First Amendment protected the use of information that was already in the public domain and that the public has a recognized interest in. California reached a similar result for Major League Baseball's own use of retired players' names, statistics, and video clips in programs and on websites in Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001), which treated baseball's history as a matter of public interest. And when former college players sued daily fantasy operators under Indiana's statute, the Indiana Supreme Court, answering a certified question, held that the statute's exception for material with "newsworthy value" covered the operators' use of names, pictures, and statistics, after which the Seventh Circuit affirmed dismissal in Daniels v. FanDuel, Inc., 909 F.3d 876 (7th Cir. 2018).

Notice how the fantasy sports cases fit with Zacchini. Zacchini protects the performance itself. The fantasy cases protect information about the performance. A league can sell broadcast rights to the game; it cannot stop anyone from reporting the box score.

Newsworthiness and public affairs: the oldest defense

The statutory and common-law privilege

Every right of publicity regime has a news privilege, whether it is written into the statute (California's § 3344(d), Indiana's "newsworthy value" exception, Illinois's "news, public affairs, or sports broadcast or account") or built by courts. In California the common-law version is a "public interest" defense that reaches well beyond hard news. In Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536 (1993), a documentary called The Legends of Malibu used footage and interviews about the surfer Mickey Dora, and the court held that the history of a distinctive Southern California subculture was a matter of public interest. In Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995), a newspaper's sale of posters reproducing its Super Bowl front pages featuring Joe Montana was protected too, because a newspaper may promote itself by reproducing what it already published.

That last point is the "advertising for the work" rule, and it has an important limit. A publication may use a person's image to advertise the issue or program that legitimately featured them, but it may not falsely suggest that the person endorses the publication. The Ninth Circuit drew exactly that line in Cher v. Forum International, Ltd., 692 F.2d 634 (9th Cir. 1982), affirming liability against a magazine whose ads implied Cher had chosen it for her confessions while reversing as to another publisher whose copy made no such claim. And the privilege does not cover knowing lies: Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983), allowed Clint Eastwood to sue the National Enquirer for using a story it allegedly knew to be false to promote the tabloid.

New York: "advertising or trade," construed narrowly

New York has no common-law right of publicity, only the statute, and its courts have kept the statute narrow. The leading cases form a short course:

• Arrington v. New York Times Co., 55 N.Y.2d 433 (1982): a man photographed on the street and put on the cover of the Times Magazine to illustrate a story about the Black middle class could not sue the newspaper, because the use was newsworthy, though he could pursue the photographer and agency that had sold the image (a gap the Legislature later closed by amending § 51).
• Stephano v. News Group Publications, Inc., 64 N.Y.2d 174 (1984): a model's photo in a magazine's fashion column, complete with prices and store names, was news, because fashion trends are news.
• Finger v. Omni Publications International, Ltd., 77 N.Y.2d 138 (1990): a stock photo of a large family illustrating an article about fertility research was protected, even though the family had nothing to do with the research, because the picture bore a "real relationship" to the article's subject.
• Messenger v. Gruner + Jahr Printing & Publishing, 94 N.Y.2d 436 (2000): a 14-year-old model's photos illustrating an advice column, in which an anonymous girl wrote that she got drunk at a party and had sex with her boyfriend and two of his friends, were protected even though the layout implied the model was the letter writer. So long as a photo has a real relationship to a newsworthy article and the article is not "an advertisement in disguise," § 51 does not apply.
• Howell v. New York Post Co., 81 N.Y.2d 115 (1993): a psychiatric patient photographed walking with a newsworthy fellow patient could not recover under § 51 or for emotional distress.

New York courts have also kept art outside "advertising or trade." In Foster v. Svenson, 128 A.D.3d 150 (1st Dep't 2015), a photographer who shot his neighbors through their windows and exhibited and sold the prints was not liable under the statute, though the court plainly disliked the conduct and invited the Legislature to act. And the claim has a short fuse: Nussenzweig v. diCorcia, 9 N.Y.3d 184 (2007), held that the one-year limitations period runs from first publication under the single publication rule, so later sales of the same print did not restart the clock.

Where newsworthiness runs out

The privilege protects the use of identity to inform, not every use of a newsworthy person. In Toffoloni v. LFP Publishing Group, LLC, 572 F.3d 1201 (11th Cir. 2009), Hustler published twenty-year-old nude photographs of Nancy Benoit with a short article about her murder. The Eleventh Circuit, applying Georgia law, held that the biography was newsworthy but the photos were not incidental to it; they were the point of the feature. Courts ask the same question in different words everywhere: is the person's identity the subject of the communication, or the bait for something else?

Docudramas, biopics, and fiction about real people

Fiction is speech, and so is fictionalization

The modern rule for films and books about real people starts with Chief Justice Bird's concurrence in Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860 (1979), joined by three other justices, which concluded that a fictionalized television film about Rudolph Valentino was protected expression and that neither the fiction nor the profit motive changed that. (The majority disposed of the case on the narrower ground that, under Lugosi v. Universal Pictures, the common-law right did not survive death, a rule the Legislature later reversed by statute.) Courts have applied the principle to a childhood character in The Sandlot allegedly based on the plaintiff (Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318 (1997)), a novel drawn from an undercover narcotics operation (Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994), which also rejected the idea that the right of publicity covers the story of a person's life), the NBC miniseries The Temptations (Ruffin-Steinback v. dePasse, 267 F.3d 457 (6th Cir. 2001)), and The Perfect Storm, where the Florida Supreme Court read the statutory phrase "commercial purpose" not to reach a film that does not directly promote a product or service (Tyne v. Time Warner Entertainment Co., 901 So. 2d 802 (Fla. 2005)).

Sarver and de Havilland: the modern high-water marks

Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016), involved an Army bomb-disposal sergeant who said The Hurt Locker's lead character was based on him. The Ninth Circuit held that the film addressed a matter of public concern (the Iraq War and the soldiers who defused its bombs), that applying the right of publicity to it would be a content-based restriction subject to strict scrutiny, and that the state's interest could not survive that scrutiny where, unlike Zacchini, the plaintiff had not invested in a performance that the film appropriated. The anti-SLAPP motion was granted.

de Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018), is the case every biopic producer should know. Olivia de Havilland, then past 100, sued over her portrayal by Catherine Zeta-Jones in Feud: Bette and Joan, including a fictitious interview and a remark about her sister she said she never made. The trial court denied FX's anti-SLAPP motion on the theory that the portrayal was realistic and therefore not transformative. The Court of Appeal reversed and directed that the motion be granted. It held that books, films, plays, and television programs that portray real people are protected whether the portrayal is flattering or not, that the creators need not buy permission (life rights agreements are a business choice, not a legal requirement), that the value of the miniseries came from its creators' work rather than from de Havilland's fame (her role ran under 17 minutes of a 392-minute series), and that her false light claim failed because the invented scenes were neither highly offensive nor shown to be published with actual malice. The California Supreme Court denied review and the U.S. Supreme Court denied certiorari. The record FX built is a model: declarations from the creators about the work's theme and research, a marketing declaration that her name and image were not used in advertising, and dozens of exhibits showing her real public statements.

New York's knowing-fictionalization exception

New York protects docudramas too, with one doctrinal wrinkle. Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1967), held that a juvenile "biography" of the pitcher Warren Spahn, which invented dialogue, thoughts, and war heroics, violated § 51 because it was a knowing, substantially fictional account dressed up as fact. Spahn survived the Supreme Court's decision in Time, Inc. v. Hill, 385 U.S. 374 (1967), which requires proof of knowing or reckless falsity before a false report on a matter of public interest can support liability under the statute, precisely because the author knew his inventions were false.

The Porco litigation shows how the exception works now. Christopher Porco, convicted of murdering his father, sued Lifetime over Romeo Killer: The Christopher Porco Story. The Appellate Division first held that his complaint stated a claim under Spahn because it alleged a knowingly and substantially fictionalized biography, in Porco v. Lifetime Entertainment Services, LLC, 147 A.D.3d 1253 (3d Dep't 2017). Four years later, the same court granted Lifetime summary judgment, in Porco v. Lifetime Entertainment Services, LLC, 2021 NY Slip Op 04072 (3d Dep't June 24, 2021). Lifetime had put the film and a timed dialogue script in the record along with police and media sources for the underlying facts, the film told viewers it was a dramatization, and the court concluded that inaccuracies in a clearly labeled dramatization of newsworthy events amounted to a false light complaint, a tort New York does not recognize, rather than a statutory one. The same reasoning appears in Hicks v. Casablanca Records, 464 F. Supp. 426 (S.D.N.Y. 1978), which protected a novel and film imagining what happened during Agatha Christie's eleven-day disappearance because readers and viewers knew they were getting fiction.

The real exposure is defamation and false light

Put the cases together and the right of publicity is rarely the claim that sinks a docudrama. The claim that does is defamation, or false light where it exists, for an invented scene that a viewer would take as fact and that damages the person. Invented dialogue is not automatically actionable; under Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991), altered or fabricated quotations matter only if they materially change the meaning of what the speaker said, and public figures must prove actual malice under New York Times Co. v. Sullivan, 376 U.S. 254 (1964). But an invented scene in which a real executive destroys evidence, or a real spouse commits a crime, is a factual assertion that needs either support or a different character. For the defamation rules, see Defamation, Business Disparagement, and Online Reviews; for production paperwork, see Producing a Film or Series: Rights, Talent, and Distribution Agreements.

Commercial speech: when the persona is selling something else

The constitutional line

Every case above assumes the use is expressive. When it is not, the analysis collapses. Advertising is protected speech, as Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), established, but it receives only the intermediate protection of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), and false or misleading commercial speech receives none. A state's interest in stopping a business from borrowing someone's identity to sell its products easily survives that scrutiny. So the real fight in an advertising case is over classification.

The core of commercial speech is expression that "propose[s] a commercial transaction," in the formulation of Board of Trustees of the State University of New York v. Fox, 492 U.S. 469 (1989). For harder cases, courts use the three signals from Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983): whether the communication is an advertisement, whether it refers to a specific product, and whether the speaker has an economic motive. No single signal is decisive, and all three together strongly suggest commercial speech.

Jordan v. Jewel: congratulations are advertising

The case that every social media manager should know is Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014). When Michael Jordan was inducted into the Basketball Hall of Fame, Sports Illustrated published a commemorative issue and offered advertisers free pages in exchange for stocking it. The Jewel-Osco grocery chain ran a full page showing a pair of sneakers bearing Jordan's number 23, congratulating him and working in its slogan ("just around the corner"). There was no product, no price, no coupon. The district court called it noncommercial. The Seventh Circuit reversed, holding that the ad was "image advertising" whose purpose was to link the brand to Jordan's achievement, and that "[a]n advertisement is no less 'commercial' because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service." Jordan later won an $8.9 million jury verdict against a second grocer whose page in the same issue included a steak coupon, and the Jewel case settled.

The analysis runs the same way when a brand's social account posts "Congrats to [athlete] on the title!" beside a product shot or a discount code, and it is not much better without the product shot, because the logo and the brand voice are the point. A post that merely reports news on a media company's account is different from a post on a sneaker company's account that is designed to borrow the athlete's glow. Federal law adds a second layer: the FTC's Endorsement Guides, 16 C.F.R. Part 255, enforced through 15 U.S.C. § 45, treat an advertisement that conveys a person's apparent approval as an endorsement, and an implied endorsement that never happened is a deceptive practice. For campaign and influencer mechanics, see Sponsorship, Endorsement, and Influencer Agreements: A Practical Guide.

Editorial content that looks like advertising, and the reverse

The line can run through the middle of a single publication. In Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001), Los Angeles Magazine ran a fashion feature that digitally dressed famous film characters in current designer clothes, including Dustin Hoffman's Tootsie character in a silk gown, and noted where readers could buy the outfits. The trial court found commercial exploitation and awarded Hoffman $1.5 million in compensatory damages plus punitive damages and fees. The Ninth Circuit reversed: the feature was editorial commentary on fashion and film, not an advertisement, so it was fully protected, and Hoffman, a public figure, could not show that the magazine intended readers to believe the altered image was real. By contrast, in Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001), a clothing catalog with a surfing theme reproduced a 1965 photograph of real surfers and offered T-shirts modeled on theirs. The court held the photo was used "essentially as window-dressing" to sell clothes and that the First Amendment did not protect it. And in Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996), a television commercial's trivia question about the basketball record held by "Lew Alcindor" sent his claims to a jury, newsworthy fact or not, because the fact was being used to sell Oldsmobiles.

Advertising for an expressive work sits on the protected side, so long as the work itself is protected and the ad does not imply an endorsement. The Restatement (Third) of Unfair Competition § 47 builds that in by excluding "advertising that is incidental to" protected uses, and California's § 3344.1(a)(2) expressly treats advertisements for plays, books, films, and similar works as part of the work. A trailer for a biopic may show the actor playing the subject; a T-shirt sold at the premiere with the subject's face on it is merchandise and needs its own analysis.

Copyright preemption: when the claim is really about a work

Section 301 of the Copyright Act, 17 U.S.C. § 301, preempts state-law rights that are "equivalent" to the exclusive rights of 17 U.S.C. § 106 in works that fall within the subject matter of copyright under 17 U.S.C. § 102. A person's name and face are not works of authorship, so a pure identity claim survives. But a claim that complains about the reproduction or distribution of a copyrighted photograph, recording, or film in which the person appears often does not. Nimmer on Copyright § 1.01[B] collects the cases, and the circuits sort them with a fairly consistent rule of thumb.

Maloney states the rule in one sentence: a publicity claim "is not preempted when it targets non-consensual use of one's name or likeness on merchandise or in advertising." Dryer adds the corollary that matters for documentaries: because the NFL Films productions were expressive works rather than advertisements, the players' claims were really objections to the distribution of copyrighted films, and they were preempted. The Second Circuit followed the same logic in In re Jackson, 972 F.3d 25 (2d Cir. 2020), holding that 50 Cent's Connecticut publicity claim against Rick Ross, over a mixtape remix that rapped new lyrics over the master recording of "In Da Club" and put 50 Cent's stage name in the track title, was preempted because it targeted the use of a copyrighted recording of his voice. The practical lesson for producers is that a properly licensed clip of a performance is usually safer, from a publicity standpoint, than a newly created imitation of it, because the clip's use is governed by the copyright license and § 301 does the rest.

False endorsement under Section 43(a): the parallel federal claim

Most right of publicity complaints add a federal claim under 15 U.S.C. § 1125(a), which bars any false or misleading representation likely to cause confusion "as to the origin, sponsorship, or approval" of goods or services. A celebrity's persona functions like a mark, and an unauthorized use that suggests the celebrity endorses a product is false endorsement. The voice cases show the reach: Tom Waits won on both a state voice-misappropriation claim and a Lanham Act false endorsement claim against a snack-chip commercial that used a sound-alike, in Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), following Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). Vanna White's claim against a robot dressed like her turning letters on a game-show set survived summary judgment in White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992), prompting Judge Kozinski's famous dissent from the denial of rehearing en banc warning that "[o]verprotecting intellectual property is as harmful as underprotecting it."

The federal claim matters for four reasons. It supplies federal question jurisdiction under 28 U.S.C. § 1338, with supplemental jurisdiction over the state claims under 28 U.S.C. § 1367. It brings Lanham Act remedies: injunctions under 15 U.S.C. § 1116 and profits, damages, costs, and attorney's fees in exceptional cases under 15 U.S.C. § 1117. It requires confusion, which is an easier sell in advertising than in art. And in expressive works it meets Rogers, as Brown and ETW show, subject to the Jack Daniel's limit for source-identifying uses. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), adds a further limit: the "origin" that § 43(a) protects is the producer of tangible goods, not the author of the ideas or expression they embody, so the statute does not police credit for creative content. For the confusion analysis in endorsement cases, see McCarthy on Trademarks and Unfair Competition § 31:147 on commercial versus communicative uses, and the annotation at 22 A.L.R. Fed. 3d Art. 4 (2017) collecting the Rogers cases.

Section 230 and publicity claims: a circuit split that decides cases

When the use appears on a platform rather than in the defendant's own work, a different statute enters. Section 230(c)(1) of the Communications Act, 47 U.S.C. § 230, bars treating an online service as the publisher of content provided by someone else. Section 230(e)(2) says the statute shall not "limit or expand any law pertaining to intellectual property." The question is whether a state right of publicity is a "law pertaining to intellectual property."

The Ninth Circuit says no. In Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007), it read the exception to cover only federal intellectual property, reasoning that fifty different state definitions of "intellectual property" would undermine the uniform immunity Congress intended, and it held state publicity claims against the service providers barred. The Third Circuit says yes. In Hepp v. Facebook, 14 F.4th 204 (3d Cir. 2021), a Philadelphia news anchor whose photo was used in online ads sued several platforms under Pennsylvania's publicity statute; the court held that the exception reaches state intellectual property laws and that Pennsylvania's statutory right of publicity is one, so § 230 did not bar her claim (over a dissent). District courts outside the Ninth Circuit had reached similar conclusions, including Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288 (D.N.H. 2008), and Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009).

Two practical points follow. First, § 230 never protects the party that created the content: a brand that writes the post, or a studio that cuts the trailer, is an "information content provider" and gets no immunity. Second, the split makes forum decisive for claims against platforms over deepfake ads and user-generated impersonations; the same complaint is barred in California and viable in Pennsylvania. For the statute generally, see Section 230 and Platform Liability: What the Statute Actually Says and Where It Stops.

Procedure: why the anti-SLAPP motion is usually the first move

How it works in California

A publicity claim against a film, book, song, or game almost always "arises from" protected activity under California's anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16(e)(4), because it targets conduct in furtherance of free speech in connection with an issue of public interest. The statute's commercial-speech exemption, § 425.17(c), would otherwise remove many business disputes from the statute, but § 425.17(d)(2) carves back any action based on "the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program." In practice, then, the creator of an expressive work can nearly always file. The motion is due within 60 days of service of the complaint; filing it stays discovery unless the plaintiff shows good cause for targeted discovery; a defendant who wins recovers its attorney's fees as a matter of course under § 425.16(c)(1); and either side can take an immediate appeal under § 425.16(i) and Cal. Civ. Proc. Code § 904.1(a)(13).

The second step is where the First Amendment fight happens. The plaintiff must show, with admissible evidence rather than allegations, a legally sufficient claim with at least minimal merit. That puts the transformative use, newsworthiness, and commercial speech questions in front of the court within months of filing, usually on the work itself plus declarations. Sarver and de Havilland were won this way. Keller, Davis, No Doubt, and Hilton were lost this way, but even those denials came after the defendants had forced the plaintiffs to put their evidence on the table, and the interlocutory appeals bought years. For the full mechanics, see Filing an Anti-SLAPP Motion: A Practical Guide.

Federal court and other states

Whether the motion survives removal depends on the circuit. The Ninth Circuit applies California's statute in diversity cases, United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999), but under Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, 890 F.3d 828 (9th Cir. 2018), a motion attacking the complaint's legal sufficiency is decided under the standards of Fed. R. Civ. P. 12, and a motion attacking its factual sufficiency is decided under Fed. R. Civ. P. 56, with discovery available. Several of the court's own judges have questioned even that, most prominently in Judge Watford's dissent from the denial of rehearing en banc in Makaeff v. Trump University, LLC, 736 F.3d 1180 (9th Cir. 2013). The First Circuit applied Maine's statute in Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010). The D.C., Eleventh, Fifth, Second, and Tenth Circuits have refused to apply state special motions in federal court because they conflict with Rules 12 and 56: Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015); Carbone v. Cable News Network, Inc., 910 F.3d 1345 (11th Cir. 2018); Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019); La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020); and Los Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659 (10th Cir. 2018). A defendant with a strong anti-SLAPP motion in state court should think hard before removing under 28 U.S.C. § 1441, and a plaintiff with a Lanham Act claim may prefer to start in federal court in a circuit that will not hear the motion.

Outside California, New York's 2020 amendments to Civil Rights Law §§ 70-a and 76-a extended its anti-SLAPP law to any communication in a public forum on an issue of public interest, made fee awards mandatory when a claim lacks a substantial basis in fact and law, and require clear and convincing proof of knowing or reckless falsity for damages. Texas's Citizens Participation Act, Tex. Civ. Prac. & Rem. Code ch. 27, and the states that have adopted the Uniform Public Expression Protection Act offer similar early motions. Where no statute applies, the defense still comes early: courts routinely decide First Amendment defenses on a Rule 12(b)(6) motion by examining the work itself, which is incorporated by reference in the complaint or subject to judicial notice under Fed. R. Evid. 201. For the broader statutes, see Anti-SLAPP Statutes and Strategic Litigation Against Public Participation.

Damages and remedies: what a plaintiff can actually win

Injunctions. Courts almost never enjoin an expressive work before trial, because an injunction against speech is a prior restraint. When a New York trial judge temporarily barred Lifetime from airing the Porco film, the Appellate Division vacated the order on an emergency basis and the film aired as scheduled. Injunctions are realistic against advertising and merchandise, and under Fed. R. Civ. P. 65 they come quickly in clear cases. The Restatement (Third) of Unfair Competition § 48 treats injunctive relief as the ordinary remedy for ongoing commercial appropriation, and § 49 measures money relief by the plaintiff's pecuniary loss or the defendant's unjust gain.

Statutory damages and fees. California's §§ 3344(a) and 3344.1(a)(1) allow the greater of $750 or actual damages, plus profits attributable to the use, punitive damages, and attorney's fees and costs to the prevailing party, which, as Kirby shows, includes a prevailing defendant. A California successor may not recover damages under § 3344.1 for uses before it registers its claim with the Secretary of State. Indiana sets a $1,000 minimum and allows treble or punitive damages for knowing, willful, or intentional violations (Ind. Code § 32-36-1-10). New York's § 51 provides injunctive relief, damages, and exemplary damages for knowing use, but no fee shifting.

Actual damages. At common law and under most statutes, the core measure is the fair market value of the use, meaning what a license would have cost, plus any injury to the person's endorsement value or reputation and, for non-celebrities, emotional distress (see 1 J. Thomas McCarthy & Roger E. Schechter, The Rights of Publicity and Privacy §§ 11:30 to 11:33 (2d ed.)). Proof usually comes from licensing comparables and expert testimony under Fed. R. Evid. 702; in de Havilland, the plaintiff's valuation expert put the value of the "use" at $1.38 million to $2.1 million, a number that never mattered because the claim failed at the threshold. Profits require apportionment: the defendant gets to show how much of its revenue came from things other than the plaintiff's identity, which in a game or film is usually most of it.

Verdicts at the extremes. The large numbers come from advertising and from forums with plaintiff-friendly tests: $15 million for Tony Twist in Missouri, $8.9 million for Michael Jordan against a grocer's coupon page, and multimillion-dollar voice cases like Waits. The reversed $1.5 million-plus judgment in Hoffman is the reminder that a judgment against editorial content rarely survives appeal.

How courts actually apply it: a forum map

Two cautions about the map. First, choice of law can import a different state's rule: courts often apply the law of the plaintiff's domicile, and postmortem rights almost always turn on domicile at death (McCarthy & Schechter §§ 11:11 to 11:15). That is why the successors to Marilyn Monroe's rights lost their California claims: her estate had told tax authorities for decades that she died a New York domiciliary, so it was estopped from claiming California domicile, and New York then recognized no postmortem right, in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), and why Princess Diana's estate lost under the law of England, in Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002). Second, a nationwide release means a nationwide plaintiff can choose among forums, so creators should analyze the work under the least protective plausible test, not the most.

Three worked examples

Example 1: a streaming docudrama about a living CEO

Northlight Pictures is producing Settlement, a six-episode limited series for a streaming service about Dana Whitcomb, the founder of Arcvale, a payments startup that collapsed amid fraud charges. Whitcomb lives in California and was tried in New York, where a jury convicted her on two counts and acquitted on four. The scripts use her real name, compress three years into six hours, invent private conversations, merge two board members into one composite character, and include a scene in which Whitcomb personally feeds subpoenaed documents into a shredder. The trial record shows that an assistant did the shredding and that Whitcomb's role was disputed. The trailer's tagline is "The true story of the woman who fooled everyone."

The creator's analysis. The right of publicity is the weakest of Whitcomb's possible claims. A dramatization of a newsworthy prosecution is protected expression under de Havilland, Sarver, and Chief Justice Bird's opinion in Guglielmi; Northlight needs no life rights agreement to tell the story, and promotional uses of the series, including the trailer, ride along with the work. In California, any publicity claim would meet an anti-SLAPP motion with a fee award attached. In New York, the risk is the Spahn exception, so Northlight should not market a substantially invented story as literally true; the "true story" tagline should become "inspired by true events," and an end card should state that the series dramatizes events, invents dialogue, and uses composite characters. That disclaimer did real work for Lifetime in Porco.

The disclaimer will not fix the shredding scene. A scene showing a real person committing a specific crime that the producers know she did not commit is a statement of fact made with knowledge of falsity, and New York Times Co. v. Sullivan protects only good-faith error. Northlight's options are to film what the record shows (the assistant shreds; Whitcomb's knowledge is left ambiguous), to support the scene with sources it can show a jury, or to cut it. Every other invented scene gets the same test: would a reasonable viewer take it as a factual claim, does it damage her, and can Northlight back it up? Dialogue may be invented under Masson so long as it does not materially change the meaning of what she actually said or did.

Whitcomb's analysis. Her lawyers should not lead with § 3344 or § 51, which invite an anti-SLAPP motion and a fee award. The claim with real value is defamation (or false light, in California) for identified scenes. The most useful thing she can do before release is send Northlight a specific, documented letter: "Episode 4, scene 12 depicts Ms. Whitcomb shredding documents; the trial transcript at pages 1412 to 1430 shows otherwise." That letter builds the actual malice record if the scene airs unchanged, and it often gets the scene changed, which is the outcome most subjects actually want.

Example 2: a mobile game with lookalike athletes

Juniper Labs is launching Courtside Legends, a free-to-play mobile basketball game. To avoid licensing fees, the designers built avatars of thirty current professional stars with names altered by a letter or two, but with each player's real height, build, skin tone, tattoos, hairstyle, jersey number, and signature moves. The app store listing features four of the avatars, and the in-game store sells "Legend Packs" that unlock them.

The creator's analysis. Changing the names does not make the players unidentifiable; Davis held unnamed but realistic avatars actionable, and Wendt, Motschenbacher, and White hold that identity can be appropriated without a name. Recognizability is ordinarily proved through context, unsolicited public recognition, and surveys (McCarthy & Schechter § 3:9), and here the designers' own reference files will prove it. On transformative use, Courtside Legends is Hart, Keller, and No Doubt again: realistic depictions of athletes doing what made them famous, in a game whose value comes partly from their fame. The Rogers test might defeat a Lanham Act claim based on the avatars inside the game, as in Brown, but the app store screenshots and Legend Pack promotions are advertising, and an avatar used as the face of the product moves toward Jack Daniel's. In Missouri the predominant use test would make things worse, not better. The balancing cases offer no refuge either: C.B.C. protects names and statistics, not playable bodies.

Juniper's options are to license through the players' unions' group licensing programs, which is how the major sports titles operate; to transform the roster into original characters whose looks, names, and moves do not map onto real players (the Kirby and Winter path); or to build a statistics-only mode that uses names and numbers without avatars, which sits closer to C.B.C. and Daniels. Historical players raise a separate question: whether a postmortem right exists depends on where each player was domiciled at death, from seventy years in California and one hundred in Indiana to forty in New York (for deaths on or after May 29, 2021) to none at all in many states.

The players' analysis. The players have strong state claims in California and the Third Circuit, a credible Lanham Act claim based on the advertising, and a natural class: Keller became a multi-plaintiff class action that settled. Damages run to a reasonable license fee for each player plus profits attributable to the Legend Packs, which Juniper's own sales data will isolate neatly. A demand letter that cites Davis and attaches side-by-side comparisons is usually enough to start a licensing conversation.

Example 3: a brand's post congratulating a celebrity

The morning after tennis player Mara Ellison wins a Grand Slam final, Copperline Coffee posts a wire-service photo of her holding the trophy with the caption "Congrats, Mara! Champions run on Copperline. Use code ACE20 for 20% off." A second version, posted to another channel, drops the discount code.

The brand's analysis. Both posts are commercial speech under Jordan v. Jewel. The first proposes a transaction outright; the second is image advertising that links the brand to her win, which the Seventh Circuit held is commercial even without a product or price. California's § 3344(d) news exemption does not help, because a coffee company's promotional post is not a news account, and the post implies an endorsement under both § 43(a) and the FTC's Endorsement Guides. There is also a separate copyright problem: the wire service owns the photo, and its infringement claim has nothing to do with Ellison's. Section 230 is no shield, because Copperline wrote the post. The exposure is not catastrophic for a single post, but it is real: at least $750 under § 3344, a reasonable endorsement fee as actual damages, profits traceable to the ACE20 code, and fees if Ellison prevails.

The safe version is a post that congratulates without her name, image, or a product ("What a final!") or, better, a licensed tribute. A news organization's account could post the same photo with a news caption; the difference is who is speaking and why.

Ellison's analysis. Her representatives should screenshot both posts, preserve the code's redemption data through a preservation demand, and send a demand letter seeking removal and a license fee measured by what she charges for a sponsored post. Most of these disputes end with a takedown and a check. If Copperline refuses, the § 3344 fee clause and the Jordan precedent give her leverage, though she should remember that the same fee clause would protect Copperline if her claim proved weak.

Strategy for each side

For creators, publishers, studios, and their counsel

• Classify every use before you analyze it. The work itself, the advertising for the work, the merchandise, and the brand partnerships are four different legal problems. Most losses come from the last two.
• Build the expressive record while you make the work. Writers' room notes about theme, research files, annotated scripts, and source binders are what won de Havilland and Porco. Documents that say "we need her face on the box to sell units" are what lost Twist.
• Test the work under the least protective plausible forum. A national release can be sued on anywhere, so ask how the work fares under Hart and Keller, not just under Rogers.
• Plan the first motion before the complaint arrives. Know whether you will want an anti-SLAPP motion, whether removal would forfeit it, and what declarations you will need within 60 days.
• Separate the publicity question from the defamation question. A docudrama almost always survives the first; the second is decided scene by scene.
• Use copyright where it helps. A licensed clip or photograph shifts the claim toward § 301 preemption; a re-creation does not.

The step-by-step version of this work, from script review through E&O applications and release, is in Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide, and the item-by-item version is in the Expressive Work Right of Publicity Risk Checklist: A Practical Checklist.

For the people depicted, their estates, and their counsel

• Match the claim to the harm. If the problem is a false and damaging scene, plead defamation or false light and build the actual malice record. If the problem is an ad, a product, or a game that sells your realistic likeness, the right of publicity is the right tool.
• Count the fee risk before filing. In California, a publicity claim against an expressive work invites an anti-SLAPP motion with mandatory fees, and § 3344 itself awards fees to the prevailing party. Kier's case cost her about $608,000 in Sega's fees.
• Choose the forum deliberately. Missouri, the Third Circuit, and California for games are better for plaintiffs than the Sixth or Tenth Circuits for art. Federal court in a circuit that will not hear anti-SLAPP motions can be worth a lot.
• Go after the commercial layer. Even when the work is protected, the merchandise, the brand tie-ins, and the false endorsement implications often are not.
• Act fast and in writing. A specific pre-release letter can change a scene, and New York's one-year limitations period does not wait for a release window to close.
• For estates, check registration. A California successor cannot recover damages under § 3344.1 for uses before its claim is registered.

Templates for both sides, including transformative use memos, newsworthiness analyses, and anti-SLAPP briefing outlines, are in the Publicity and Free Speech Toolkit: Transformative Use Memos, Newsworthiness Analyses, and Anti-SLAPP Motions.

Common mistakes

1. Calling merchandise "art." Comedy III sold T-shirts. A realistic likeness on a mug is a product, whatever the artist's skill.
2. Trusting a name change. If the audience recognizes the person, the claim is about identity, and identity is more than a name.
3. Forgetting the marketing. A protected film can generate an unprotected poster, trailer tagline, sponsor tie-in, or app store screenshot.
4. Treating a disclaimer as a cure. A "dramatization" card helps with statutory privacy claims and audience expectations, as in Porco, but it does not neutralize a specific false statement of fact.
5. Filing a publicity claim to remedy a reputational injury. Plaintiffs who really object to how they were portrayed often lose a publicity claim and pay the other side's fees, when a narrow defamation claim would have had more value.
6. Removing to the wrong federal court. A defendant with a winning anti-SLAPP motion can lose it by removing a case in the Second, Fifth, Tenth, Eleventh, or D.C. Circuits.
7. Ignoring the photographer. The person depicted and the person who took the picture have separate claims.
8. Using the person as the brand. After Jack Daniel's, a celebrity name used as a product name or logo gets no Rogers protection on the federal claim.
9. Missing domicile. Postmortem rights follow the decedent's domicile at death, which is often disputed and sometimes decisive.

Frequently asked questions

Do I need permission to make a film, series, book, or podcast about a real person? Generally no. Biographies, docudramas, historical fiction, and documentaries about real people are protected expression, and courts from Guglielmi to de Havilland have said so. Producers buy life rights for access, cooperation, and a release of claims, not because the law requires it. The constraints that do apply are defamation, false light, private-facts privacy, and contract (for example, a confidentiality agreement the subject signed with you).

If I change the name, am I safe? Not if people can tell who it is. Courts look at the whole presentation: appearance, voice, biography, catchphrases, numbers, and context. A changed name plus a changed look, profession, and story is a different matter, which is the Kirby and Winter route.

Can I put a celebrity in a parody or satire? Usually, yes, in the work itself. Parody and caricature are the classic transformative uses (Winter, Cardtoons), and satire of public figures is protected even when cruel (Hustler). Parody on merchandise or in advertising gets far less protection.

Is a video game treated like a film? Constitutionally, yes: Brown v. Entertainment Merchants Association holds that games are protected speech. Doctrinally, games have fared worse because they tend to feature realistic people doing their real jobs, which the transformative use test penalizes.

Does a disclaimer protect me? It helps more than people think on statutory claims and less than they hope on defamation. A clear "dramatization" or "inspired by" statement supported New York's newsworthiness ruling in Porco, and a fictional framing helped in Hicks. A disclaimer will not save a scene that a viewer would reasonably take as a factual accusation, and "this is not an endorsement" will not convert an advertisement into news.

Can a company congratulate a celebrity on social media? It can congratulate; it should not use the celebrity's name or image alongside its brand. After Jordan v. Jewel, a brand's tribute is advertising. A post that never names the person and never shows them is a different matter.

What about people who have died? It depends on the state of domicile at death: seventy years in California, one hundred in Indiana, forty in New York for deaths on or after May 29, 2021, indefinitely in Tennessee while the rights are used, and none in many states. The same expressive-work exemptions apply to postmortem claims, and California's § 3344.1 lists them expressly.

What about AI-generated performances of real people in films or games? The tests in this article still apply, but the newer digital replica statutes add requirements. Tennessee's ELVIS Act reaches voice and the tools used to clone it, California's § 3344.1 now addresses digital replicas of deceased performers in audiovisual works and sound recordings, and New York's § 50-f requires a conspicuous disclaimer for some unauthorized digital replicas of deceased performers in scripted works. Each preserves room for news, commentary, parody, and documentary or biographical uses, with differences in detail. See Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law.

Can I make a platform take down an unauthorized use of my likeness? Platforms often remove impersonations and fake endorsements under their own policies, which is usually the fastest route. Whether you can sue the platform depends on the § 230 split: barred in the Ninth Circuit under Perfect 10, potentially viable in the Third Circuit under Hepp. The person who created the content is never protected by § 230. If the poster is anonymous, see Unmasking Anonymous Online Speakers: John Doe Subpoenas, the Dendrite and Cahill Tests, and the First Amendment.

Practical takeaways

• The right of publicity polices commercial exploitation of identity; the First Amendment protects telling stories about, commenting on, and making art from real people. The cases are mostly about which of those a particular use is.
• Advertising and merchandise lose; fiction, biography, news, parody, and art usually win; realistic depictions inside products sold on the person's fame are the battleground.
• The test depends on the forum: transformative use in California and the Third Circuit, Rogers-style relatedness in the Sixth, predominant use in Missouri, balancing in the Eighth and Tenth, and a narrow statute in New York.
• In docudramas, the publicity claim is usually weak and the defamation claim is decided scene by scene.
• Jack Daniel's changed the federal false endorsement analysis for source-identifying uses, not the state publicity tests.
• Copyright preemption defeats claims aimed at a copyrighted work, not claims aimed at ads and merchandise.
• The anti-SLAPP motion, where available, decides most of these cases early and shifts fees; § 3344's own fee clause cuts both ways.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.

Related Documents

Related Articles

• Right of Publicity Basics: the elements of the claim, who holds the right, and the core defenses.
• The Right of Publicity: Name, Image, Likeness, Digital Replicas, and the Limits of Owning Yourself: the full doctrine, from state statutes to NIL and synthetic performers.
• Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law: the new voice and replica statutes and the federal proposals.
• Trademark Fair Use: Descriptive Use, Nominative Use, and Expressive Works After Jack Daniel's: the federal side of the Rogers question.
• Copyright Fair Use: The Four Factors, Transformative Use, and What Warhol Changed: where the transformative concept came from and how Warhol narrowed it.
• Defamation, Business Disparagement, and Online Reviews: the claim that actually threatens most docudramas.
• Anti-SLAPP Statutes and Strategic Litigation Against Public Participation: the statutes, the federal-court split, and fee shifting.
• Section 230 and Platform Liability: What the Statute Actually Says and Where It Stops: the immunity and its intellectual property exception.
• Video Game Law: Intellectual Property, Virtual Goods, User Content, and Player Protection: the broader legal framework for games.
• Unmasking Anonymous Online Speakers: John Doe Subpoenas, the Dendrite and Cahill Tests, and the First Amendment: identifying anonymous impersonators before you sue.

Related Guides

• Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide: the step-by-step clearance process for films, series, books, games, and campaigns.
• Licensing and Protecting Name, Image, and Likeness: A Practical Guide: when a license is the better path, and how to structure it.
• Filing an Anti-SLAPP Motion: A Practical Guide: deadlines, evidence, hearings, fees, and appeals.
• Producing a Film or Series: Rights, Talent, and Distribution Agreements: chain of title, releases, and E&O in production.
• Sponsorship, Endorsement, and Influencer Agreements: A Practical Guide: doing celebrity marketing with permission.

Related Checklists

• Expressive Work Right of Publicity Risk Checklist: A Practical Checklist: a use-by-use risk review for creators and the people they depict.
• Right of Publicity Clearance Checklist: A Practical Checklist: releases, stock imagery, deceased individuals, and escalation.
• Game Launch Legal Checklist: A Practical Checklist: the pre-launch review where likeness questions should be caught.

Related Toolkits

• Publicity and Free Speech Toolkit: Transformative Use Memos, Newsworthiness Analyses, and Anti-SLAPP Motions: annotated templates for both sides of these disputes.
• Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands: releases, endorsement outlines, and demand letters.
• Entertainment and Media Production Toolkit: Rights, Talent, and Distribution: production paperwork, including depiction releases.
• Fair Use Toolkit: Analysis Memoranda, Clearance Decisions, and Litigation Positions: the copyright analog to the transformative use memo.