The right of publicity is generally defined as the right of every individual to control and protect against the commercial use of his or her name, image, likeness, biographical information or some other aspect of identity. The right of publicity, however, is subject to First Amendment limitations.
As technology evolves and expressive ideas are more often conveyed through digital media, courts have been confronted with the increasingly complex interplay between the right of publicity and the First Amendment. Courts have applied standards borrowed from copyright law, including the test of whether the use of an individual’s likeness or other attribute is sufficiently transformative to be entitled to protection under the First Amendment. Recently, courts have applied the transformative test to determine the interplay between the right of publicity and the First Amendment in the area of electronic gaming. The results of such application have not been uniform.
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