SPT 525 2-3 Short Paper

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Southern New Hampshire University *

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Jun 4, 2024

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1 2-3 Short Paper: Right of Publicity and Fair Use Tim Nicely Southern New Hampshire University SPT 525 Sport Licensing and Strategic Alliances May 26 th 2024 The Right of Publicity, more commonly known to the sports world now as Name, Image, Likeness (NIL) is essentially the right to control the commercial use of one’s identity ( Right of Publicity» a Brief History of the Right of Publicity , 2012). A prominent example that meets the definition of Right of Publicity comes from the 2013 California case Keller vs. EA, NCAA. This case would change the landscape of the college sports video game industry when the courts decided that EA Sports had violated The Rights of Publicity of the plaintiffs by featuring their likenesses in their college sports video games without their consent and providing no

2 compensation ( Keller v. EA, NCAA , 2013). EA Sports tried to claim they qualified for First Amendment protection, however the courts denied that defense. As a result of this lawsuit, EA Sports would cease to create college sports video games until new NIL deals allowed them to develop a new college football game set to be released in 2024, over a decade after the landmark legal case. A recent newsworthy Right of Publicity case that proved not to be a violation of Right of Publicity is Daniels v. Fan Duel, Draft Kings. In this case, a group of athletes contested it was a violation of their Right of Publicity for sportsbooks and fantasy sports sites such as Fan Duel and Draft Kings to feature their names and images on their platforms to get customers to enter cash contests ( Daniels v Fan Duel, Draft Kings , 2018). The Indiana Supreme court ruled, however, Indiana’s right of publicity statute contains an exception for material with newsworthy value that includes online fantasy, ruling against the plaintiffs. Another legal doctrine that relates to licensed use of material is “Fair Use.” Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances (U.S. Copyright Office, 2022). A recent example of a noteworthy case where Fair Use was ruled was Brown v. Netflix Inc. In 2021. There was a documentary film called Burlesque: Heart of the Glitter Tribe that was available to stream on Netflix, Amazon, and Apple TV which featured the chorus of a children’s song called Fish Sticks n’ Tater Tots. The Creators of the song sued Amazon, Netflix, and Apple for copyright infringement for featuring the song in a movie on their platforms. The courts ruled in favor of the defendants, stating it was

3 fair use. The plaintiffs appealed, and the ruling was upheld again in an appellate court with four factors considered. The first factor ruled use of the song was “incidental” to the film’s purpose as a documentary. The second factor was the nature of the copyrighted work, although the court did not squarely address this factor. The third factor the court cited was the amount and substantiality of the portion used in relation to the work as a whole, where the court rules there was minimal use compared to the full work. The fourth and final factor was the effect of the use opon the potential market for or value of the copyrighted work. The court ruled this use of the song would not affect the market for the song. ( Brown v. Netflix, Inc. , 2021) A recent example of when Fair Use argued but was denied by the court in Viacom Int’l v. Pixi Universal. Pixi Universal created a “pop-up” restaurant they called “The Rusty Krab” which featured recreations of the restaurant “The Krusty Krab” from famous cartoon and Viamon intellectual property Spongebob Squarepants. In this case, the court ruled that all four factors considered weighed against Fair Use and that Viacom was likely to succeed on its copyright infringement claim and granted its motion for preliminary injunctive relief ( Viacom Int’l v. Pixi Universal , 2022).

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