Sports Media, Publicity Rights, and the First Amendment

Every year, thousands of citizens tune in on Saturday mornings to watch the polarizing event that is college football. This spectacle, run by the infamous National Collegiate Athletic Association (“NCAA”), generates over a billion dollars every year. The universities are able to help generate this revenue due to the participation of the student-athletes playing the sport. Therefore, it is conclusory that student-athletes are a necessary component for universities and the NCAA to generate revenue. Recently, the industry of sports-media and athletes’ rights has been the focus of much litigation, specifically related to usage of college athletes’ names, images, and likeness (“NIL”).

Of these lawsuits, the most prominent have focused on major sports-media revenue sources, such as game broadcasts and videogames. The plaintiffs in these cases, often former student-athletes, have filed grievances against one specific party, the National Collegiate Athletic Association. The courts in these cases have been tasked with traversing the difficult line between an individual’s state-based right of publicity via the Copyright Act and the constitutional protection afforded to publishers and game creators under the First Amendment.

Although the issue has been addressed in federal and state courts, the Supreme Court has only addressed the situation (the right of publicity) once. In Zacchini v. Scripps-Howard Broad Co., the Supreme court held that the First and Fourteenth Amendments do not require a state to “privilege the press” when deciding whether the defendant was wrong to broadcast a plaintiff’s activity without compensating that individual. Without much more Supreme Court precedent, there is a lack of uniformity at the state level. As a result, many state and federal courts have developed different tests and standards that balance the state right against the constitutional right in order to determine if a plaintiff can successfully assert a right of publicity claim.

In determining the most recent publicity cases, the courts have often determined that a plaintiff cannot assert a right of publicity against the defendant’s use of that individual’s NIL in game broadcast footage, because “(1) the applicable state’s publicity statute expressly exempts sports broadcasts, (2) such broadcasts represent protectable non-commercial speech (i.e., qualify as newsworthy or public interest publications), and/or (3) the broadcaster’s valid copyright in the relevant game footage preempts a state-based publicity claim under the Copyright Act.” Although athletes often lose in those situations, courts have been more willing to hold a right of publicity belongs to athletes in the unauthorized use of an athlete’s NIL in a video game setting.

Section I of the article discusses the evolution of the right to publicity and how it has become intertwined with the First Amendment. In Section II, the article focuses the variety of tests employed by the courts in balancing the constitutional right against the state statutes. Section III applies the tests discussed in Section II in the sports-media context. Section IV turns to the current state of the sports media and rights of publicity as well as discusses suggested solutions moving forward.

The Birth of Publicity Rights

Judge Frank coined the phrase right to publicity in the 1953 holding Haelen Laboratories v. Topps Chewing Gum Inc.. The facts of the case state that a chewing gum company distributed gum and held the exclusive rights to use popular professional baseball players’ images for their products. Another gum company then convinced a baseball player to allow it to use that player’s image for its chewing gum as well. Judge Frank stated that “. . . a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture. . . This right might be called a right of publicity.” The language of the opinion suggests that Judge Frank believed the right of privacy afforded to public figures includes the right in the publicity value of his or her image.

Since the decision in 1953, the right of publicity has coincided with a right to privacy, with some courts declaring “[t]he right of publicity is, somewhat paradoxically, an outgrowth of the right of privacy.” Some scholars even go so far as to say that “appropriation . . . of the plaintiff’s name or likeness” can bring rise to a cause of action where the defendant “pirate[s] the plaintiff’s identity for some advantage of his own.”

Early opinions recognized the need to protect this property interest, especially for “publicly known persons” whose identities may be misappropriated. In the above-mentioned Topps Chewing Gum Inc. case, the court held that the players had an explicit right of publicity, stating that “…a man has a right in the publicity value of his photograph . . . This right might be called a ‘right of publicity.’” Therefore, with athletes being acknowledged as public figures, it follows that much of publicity litigation has revolved around the protection of athletes’ identities.

One of the most influential precedents in regards to the actions against the NCAA is the 1977 Zacchini decision. In Zacchini, the issue “involved the videotaping and subsequent rebroadcast on a television news program of [the] plaintiff’s human cannonball act.” The case started in the state courts of Ohio, where the Ohio Supreme Court determined that Zacchini’s right of publicity was trumped by the First Amendment.

The Supreme Court reversed this decision, dealing a blow to the powers granted by the First Amendment. The Court, in reversing, held that the “First Amendment did not insulate [the] defendant from the right of publicity in connection with the publication of the plaintiff’s entire act or performance.” The Court found that “[t]he broadcast of a film of [Zacchini’s] entire act poses a substantial threat to the economic value of that performance.”

The language used in Zacchini was relied upon in In re NCAA Student-Athlete Name & Likeness Licensing Litigation (“In re NCAA”). The court held that the First Amendment did not preclude athletes participating in the sporting events from asserting a right of publicity in connection with live broadcasts of them. Drawing from Zacchini, the court stated “[t]he Court’s reasoning in Zacchini strongly suggests that the First Amendment does not guarantee media organizations an unfettered right to broadcast entire sporting events without regard for the participating athletes’ right of publicity.”

Although In re NCAA was a victory for athletes, “subsequent federal court decisions have taken the opposite view characterized” in In re NCAA and cast the case out as an outlier. Even though it is unclear whether there is a uniform standard to apply, Judge Frank’s decision from 1953 created an environment where individuals became less concerned with their privacy and more concerned with their ability to protect names, likeness or images.

Publicity and the First Amendment

As mentioned above, when an individual’s, or an athlete’s, NIL is used without explicit approval, there is a possibility for that individual to bring a right of publicity claim. The defendant’s first line of defense is often employing the constitutional powers given by the First Amendment to argue they are not infringing on the individual’s right of publicity. Below, the article will detail the First Amendment and the forms of speech protected while addressing its limitations. Additionally, it will discuss the various defenses and exceptions that have been utilized to limit the scope of athlete’s right of publicity claim. Past precedent shows that the sports-media defendants have been quick to make use of such defenses when athletes raise right of publicity claims.

First Amendment Interaction

Alluded to throughout this paper is the fact that courts must balance the constitutionally given First Amendment rights of free expression against a state-based right of publicity for individuals when claims for right of publicity arise. The text of the First Amendment reads “Congress shall make no law . . . abridging the freedom of speech or press.” Since its inception, the First Amendment has faced many challenges which has led to the creation of three forms of speech that are protected by the amendment. These forms are: political news, expressive speech, and advertising.

Generally, the First Amendment gives the highest level of protection to political speech due to the impact it creates by providing “information about the real world and is essential to clear thinking and public debate in a free society.” Following political speech, expressive speech receives a lower standard of protection. Lastly, there is advertising speech, now referred to as commercial speech, which is entitled to protection under the First Amendment. In these circumstances, questions arise to determine whether the speech qualifies as commercial or noncommercial speech, which receives less protection.

Using this as a foundation, this article will focus on the First Amendment’s treatment of commercial speech, specifically whether the speech in question is commercial or noncommercial. The court in Jordan v. Jewel Food Stores, Inc. noted that while “[c]ommercial speech was initially viewed as being outside the ambit of the First Amendment altogether,” holdings preceding its opinion held “that commercial speech is constitutionally protected but governmental burdens on this category of speech are scrutinized more leniently than burdens on fully protected noncommercial speech.”

The distinction between the two is important as it is found that noncommercial speech is often a complete defense to right of publicity claims. Contrasting with noncommercial speech, plaintiffs can find liability for right of publicity violations when attaching their argument to commercial speech. “To determine whether speech falls on the commercial or noncommercial side of the constitutional line, the [Supreme] Court has provided this basic definition: Commercial speech is ‘speech that proposes a commercial transaction.’”

The words of the Supreme Court do not deliver a bright line distinction between what is commercial versus noncommercial, therefore courts are left wondering in First Amendment cases where the distinction lies. Judging by past precedent, courts have been reluctant to create a specific test for these instances and instead rely on asking whether the defendant’s speech “proposes a commercial transaction.’ The court in Jordan v. Jewel is an example where a court used this approach in a sports-media related context. The facts presented in Jordan state that the defendant, a grocery store named Jewel, authored a one-page publication that was featured in a Sports Illustrated issue that celebrated Michael Jordan’s 2009 induction into the National Basketball Hall of Fame.

At issue was Jewel’s use of a design with Jordan’s number, the infamous twenty-three, accompanied by the slogan for the grocery store chain, “Good things are just around the corner,” without the consent of Jordan himself. Jordan’s complaint was founded in the Illinois statutory right of publicity. The argument presented by the defendant grocery store was that the advertisement in the magazine was noncommercial speech, therefore deserving protection under the First Amendment from any liability under the right of publicity.

At the trial level, the court sided with Jewel, but on appeal, the Seventh Circuit reversed the decision. The appellate court determined that Jewel’s ad was in fact “commercial speech” within the meaning of the First Amendment, stripping it of a complete defense against a right of publicity claim. In its holding, the court announced that “Jewel’s ad had an unmistakable commercial function: enhancing the [Jewel] brand in the minds of consumers.” Accordingly, in cases like Jordan, when an athlete’s identity is used in connection with some sort of commercial or brand advertisement, there is difficulty determining the overlap between First Amendment protection and liability under rights of publicity statutes.

News and Protection

In states that recognize a right of publicity, there is some form of newsworthiness exception that is empowered via statute or common law. Generally, the defense is “broad” and extends to “all matters of the kind customarily regarded as ‘news’ and all matters giving information to the public for purposes of . . . amusement.” Under New York’s right of publicity statute, “the use of a person’s name or picture in the context of an event within the ‘orbit of public interest and scrutiny,’ . . . a category into which most of the events involving a public figure . . . fall, can rarely form the basis for an actionable claim under [section 51 of New York Civil Rights Law].”

In sports-media, courts have held that “[t]he recitation and discussion of factual data concerning the athletic performance of [professional athlete] plaintiffs command a substantial public interest.” Additionally, courts have recognized that “both professional baseball and professional football . . . are closely followed by a large segment of the public.” With this in mind, some courts have determined that broadcasts of professional sporting events and related reports fall under the umbrella of newsworthy events, protecting them from liability under right of publicity statutes.