Video Games and NCAA Athletes: Resolving a Modern Threat to the First Amendment

Abstract

In 2013, two U.S. Courts of Appeals ruled that NCAA athletes could maintain right of publicity claims against a video game maker for use of their likeness. These decisions in favor of sympathetic plaintiffs reveal the threat that current right of publicity doctrine poses to First Amendment rights. The right of publicity tests applied by lower courts conflict with both the Supreme Court precedent and the theoretical foundations of the doctrine. This article reviews and rejects this test, ultimately proposing a new test. This two-tiered right of publicity test better protects the values of right of publicity while protecting the First Amendment rights of content creators