We go for months with nothing but the slightest right of publicity kerfuffle here and there; and then, in the space of less than two weeks, we get two major appellate decisions. Both the Eighth and Ninth Circuit Courts of Appeal recently handed down opinions in the ongoing balancing of individuals’ right of publicity against the First Amendment’s guarantee of freedom of expression.

Dryer v. NFL and Copyright Preemption
In Dryer v. NFL, football veteran Fred Dryer and two other players alleged that the NFL violated their publicity rights by producing and selling documentary films using historical footage of games in which the plaintiff athletes appeared. The Eighth Circuit affirmed the district court’s dismissal of the case on several bases, primarily copyright preemption.

Section 301 of the Copyright Act provides that state law causes of action consisting solely of nothing more than a claim equivalent to an action against the use of a copyrighted work are preempted by copyright law. In Dryer, the claim added nothing to a simple demand that the NFL should not re-use its copyright-protected footage without paying a license fee to players who appear in it. Because appearance in professional football games and consent to the recording of those games was a term of the athletes’ original contract, the claim involved nothing more than a challenge to the use of a copyrighted work, and therefore the state law publicity claim was properly dismissed.

Copyright preemption, though not always clearly understood, argued, or analyzed, remains a potent tool for early dismissal of right of publicity claims that arise solely from the defendant’s use of a photo, film, recording, or other copyright-protected work.

Sarver v. Chartier: Movies, Games, and the First Amendment
Here in the Ninth Circuit, the long-stalled case of Sarver v. Chartier finally drew an opinion from a three-judge panel. U. S. Army Sergeant Jeffrey Sarver, a specialist in disarming Improvised Explosive Devices during the conflict in Iraq, had been interviewed by embedded combat reporter Mark Boal, who subsequently wrote an article based on his experiences and observations with Sarver’s IED disposal unit. Some time later, Boal co-wrote with writer-director Kathryn Bigelow a screenplay that became the award winning film The Hurt Locker. The central character in that film, Sergeant Will James, was admittedly based in large part on Sarver.

Sarver sued the makers and distributors of the film for having used his identity and personality without his permission for their own commercial gain, and for having fictionalized his character to a degree that portrayed him in a false light and damaged his reputation. This sounds as if Sarver was saying that the character in the film both was and wasn’t him, causing each claim to weaken the other. But the main issue in the case was whether the use, without permission, of a real person as the basis for a character in a film creates a commercial harm that outweighs the film makers’ First Amendment right to free artistic expression.

In affirming the district court’s dismissal of Sarver’s publicity and defamation claims, the Ninth Circuit panel surprisingly did not rely on the frequently-applied test from Comedy III v. Saderup, in which the California Supreme Court borrowed a page from the copyright fair use test by asking whether the defendant merely copied the plaintiff’s image or persona, or if the use was sufficiently “transformative” to make the result a new work of artistic expression. Instead, the Ninth relied heavily on the only right of publicity case ever ruled on by the U.S. Supreme Court, Zacchini v. Scripps-Howard. In Zacchini the Supreme Court held that the First Amendment did not outweigh a right of publicity claim where the defendant news company had broadcast the plaintiff’s entire performance (being shot from a cannon) as a TV news story, harming the plaintiff’s ability to attract viewers to his live show. In Sarver, the Ninth Circuit found that the film makers’ protected expression does outweigh Sarver’s purely commercial claim for compensation for the film’s use of elements of his identity. The film is not commercial speech (“speech proposing a commercial transaction”); and the film makers, unlike the TV news program in Zacchini, did not appropriate the economic value of the plaintiff’s “performance.” (The Ninth Circuit also affirmed the dismissal of Sarver’s defamation and false-light privacy claims, finding that the portrayal of Sgt. James in the film was more positive than negative, and was unlikely to “highly offend” a reasonable person.)

Although the Ninth Circuit panel tried to distinguish recent cases in which athletes prevailed over a video game producer’s use of their images in computer football games, the Sarver opinion is still at odds with those cases. The Court stresses that professional athletes are more like Zacchini, “performers” who work hard to develop talent and skill at what they do, and should not have the economic value of their efforts appropriated for the commercial benefit of a game company. But the Court’s reasoning left unclear how use of a football player’s image in a computer game “appropriates” economic value while a film’s incorporation of the skills and accomplishments of a soldier like Sarver does not.

The Court’s analysis seems based on an assumption that, because athletes are highly compensated for what they do, and their celebrity status commands high licensing fees for use of their names and images in endorsements and sponsorships, that value is wrongfully appropriated by including their images in an entertainment; while Sarver is in no sense a performer, does not command a licensing market, and therefore has no “economic value” for the film to have misappropriated. This raises the core question of whether a right of publicity is uniquely the right of a celebrity, rather than a right that any individual can claim. But courts and commentators have uniformly maintained that the right of publicity belongs to every individual, and even where no state statute protects it, it is protected by common law tort.

The discrepancy between Sarver and athlete cases such as Hart v. Electronic ArtsKeller v. Electronic Arts, and Electronic Arts v. Davis is heightened by the fact that the U.S. Supreme Court has expressly declared video games to enjoy the highest level of First Amendment protection, “like the protected books, plays, and movies that preceded them,” Brown v. Entertainment Merchants Association, 564 U.S. 08–1448 (2011), finding unconstitutional a California state law restricting the sale of certain video games deemed “violent.” Many academics and other commenters on the recent line of athlete-v.-video-game cases have suggested that, in spite of the Supreme Court’s unambiguous statement, courts still hold video games in lower esteem than more established forms of art, entertainment, and communication.

The Sarver panel’s sketchy analysis, and its reliance on Zacchini rather than Saderup, may reflect the Court’s anticipation of a new U.S. Supreme Court consideration of right of publicity jurisprudence in the near future. Cert petitions filed in the Hart and Keller cases were dismissed by the parties in 2014, but a cert petition in Electronic Arts v. Davis, No. 15-424 (filed October 2015) is still before the Court, and is likely to be ruled on by the end of the Court’s current term. The Sarver court was clearly unwilling to create a market in which film makers have to pay license fees to everyone who is actually or arguably depicted in a film; so the different treatment of video games, which supposedly enjoy the same level of First Amendment protection, is an issue whose resolution is long overdue.