The right of publicity gives a person control over the commercial use of their identity. The First Amendment protects the right to make books, films, songs, paintings, and games about real people. Where those collide, U.S. courts do not apply one national rule. They apply competing balancing tests that vary by state and circuit, and the outcome of a case can turn on which test the court reaches for first.
The dominant test in California, and therefore in most of the entertainment industry, is transformative use: a work is protected when it adds enough of the defendant’s own expression that it stops being a literal reproduction of the plaintiff’s likeness. Other courts use Rogers v. Grimaldi, a trademark-derived rule that is far friendlier to defendants. Missouri uses a “predominant use” test that asks what the work is really selling. Understanding which framework applies is usually more predictive than the facts.
Every discussion starts with Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), the only time the Supreme Court has decided a right of publicity claim. Hugo Zacchini was a human cannonball. A local news crew filmed his entire act, roughly 15 seconds, and broadcast it on the evening news.
The Court held that the First Amendment did not shield the station. The reasoning is narrow but important: the station appropriated the entire act, which was “the very activity by which the entertainer acquired his reputation,” and the economic interest at stake was the same one copyright protects, the performer’s right to be paid for his own performance. Zacchini did not say news reporting about performers is unprotected. It said broadcasting the whole show, for free, destroys the market for the show.
That framing matters because it tells you what the strongest publicity claims look like. They are claims about wholesale taking of a performance or a literal likeness sold as itself, not claims about being portrayed, criticized, or discussed.
In Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001), an artist sold lithographs and T-shirts bearing a charcoal drawing of the Three Stooges. The California Supreme Court imported the first fair use factor from copyright law and asked whether the work was transformative: does it add “significant creative elements” so that it becomes “primarily the defendant’s own expression rather than the celebrity’s likeness”?
Saderup lost. His drawing was skillful, but it was a literal, conventional depiction, and its market value derived from the fame of the people in it. The court offered a useful heuristic: ask whether the marketability of the work comes principally from the celebrity’s fame, or from something the artist brought.
Two years later the same court came out the other way in Winter v. DC Comics, 30 Cal. 4th 881 (2003). Comic books featured half-worm villains named Johnny and Edgar Autumn, drawn with the Winter brothers’ long white hair and pallor. Because the characters were “distorted for purposes of lampoon, parody, or caricature” and were merely cartoon characters, “half-human and half-worm,” in a larger story that was itself expressive, the depictions were transformative.
The test’s outer limit appeared in No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018 (2011). Band Hero let players use exact avatars of No Doubt’s members, and the court found no transformation precisely because the avatars did what the real band does: perform rock songs on stage. The creative context around the literal likeness did not save it.
Two federal appellate cases in 2013 made the point unmistakable. In Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013), and In re NCAA Student-Athlete Name & Likeness Licensing Litigation (the Keller case), 724 F.3d 1268 (9th Cir. 2013), EA’s college football games used avatars matching real players’ height, weight, jersey number, home state, and playing style, doing the thing those players are known for.
Both courts held the use was not transformative. Two arguments were expressly rejected. First, EA argued that user customization was itself transformation. Courts said the relevant work is what the developer shipped, not what a player might do with it. Second, EA argued the game as a whole is enormously creative. Courts said the question is what was done to the plaintiff’s likeness, not how much unrelated creativity surrounds it. Keller helped drive the settlements that reshaped college athlete compensation and led to today’s NIL regime.
Note the tension with Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013), decided the same day. Jim Brown’s Lanham Act false endorsement claim over Madden failed under Rogers. Same court, same defendant, same week, opposite result, because the legal theory was different.
Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), arose when Ginger Rogers sued over the Fellini film Ginger and Fred. The Second Circuit built a two-step test for expressive works: the use is protected unless it has no artistic relevance whatsoever to the work, or, if it has some relevance, unless it explicitly misleads as to source or content. That is a very hard standard for plaintiffs to beat, and courts applying Rogers to publicity claims almost always rule for the defendant. The Sixth Circuit used its logic in ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003), rejecting Tiger Woods’s claim over a commemorative painting.
Missouri went in the opposite direction. In Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003), former hockey player Tony Twist sued over a Spawn comic villain named Anthony “Tony Twist” Twistelli. The court rejected both transformative use and Rogers as too speech-protective and adopted a predominant use test: if a product predominantly exploits the commercial value of an identity, the claim wins even if some expressive content exists. The court held Twist had made a submissible case and that the First Amendment did not bar it, but reversed on flawed jury instructions and remanded for a new trial, which Twist later won. Critics note the test invites judges to grade art.
Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), added new instability. The Supreme Court held Rogers does not apply when a mark is used as a source identifier for the defendant’s own goods. That was a trademark holding, but it undercut Rogers’s standing as an all-purpose expressive-works shield, and courts are still working out the spillover.
Some categories rarely produce liability. News and commentary about real people are protected, and California’s statute, Civil Code § 3344, expressly exempts news, public affairs, and sports accounts. Docudramas and biographies are protected expression, as De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018), confirmed when Olivia de Havilland lost over her portrayal in Feud. Parody and satire fare well, as in Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996). Even bare factual data is protected: C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), allowed fantasy baseball to use player names and statistics.
The pattern across all of it: the closer a use comes to selling the person as a product, the weaker the defense. The closer it comes to saying something about the person, the stronger.
What is the transformative use test? It asks whether a work adds significant creative elements so that it becomes something more than a literal depiction of the person. The California Supreme Court borrowed it from copyright fair use in Comedy III Productions v. Gary Saderup (2001). If the celebrity’s likeness is the raw material for the artist’s own expression, the First Amendment wins. If the work is a conventional, literal likeness whose economic value comes from the fame it depicts, the right of publicity wins.
Does the First Amendment always beat the right of publicity? No. Zacchini v. Scripps-Howard Broadcasting (1977), the only U.S. Supreme Court right of publicity case, went against the broadcaster. A television station aired a human cannonball’s entire 15 second act on the news, and the Court held the First Amendment did not privilege appropriating the whole performance. Expressive works usually prevail, but literal, commercial, or wholesale takings often do not.
Why did EA lose the college football video game cases? In Hart v. Electronic Arts (3d Cir. 2013) and In re NCAA Student-Athlete Litigation, known as Keller (9th Cir. 2013), the avatars replicated real players’ physical attributes, jersey numbers, home states, and playing styles doing exactly what those players do: playing football. Both courts held the depictions were literal rather than transformative, and that user customization and surrounding game content did not change the analysis.
What is the difference between the transformative use test and Rogers v. Grimaldi? Transformative use, a California-origin test, examines how much the defendant added to the likeness. Rogers v. Grimaldi (2d Cir. 1989) is a titles and trademark-derived test asking whether the use has any artistic relevance to the underlying work and, if so, whether it explicitly misleads about source or content. Rogers is far more protective of defendants, and circuits disagree on whether it belongs in right of publicity cases at all.
Going further: What Is the Right of Publicity? A plain-English guide .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The Ninth Circuit refused to hold a Paris Hilton birthday card transformative as a matter of law, letting her 'That's hot' publicity claim proceed.
The California Court of Appeal held Rick Ross's use of a drug kingpin's name and persona was transformative, First Amendment-protected art.
Missouri's high court let NHL enforcer Tony Twist sue Spawn creator Todd McFarlane, adopting a 'predominant purpose' test to balance the right of publicity against free speech.
The Sixth Circuit held that an artist's print of Tiger Woods's 1997 Masters win was transformative First Amendment speech, defeating both Lanham Act and right-of-publicity claims.
How California's appellate court used the First Amendment to dismiss Olivia de Havilland's publicity and false-light suit over the 'Feud' docudrama.
A California appellate court held that Band Hero's exact avatars of No Doubt were literal reproductions, not transformative use, so the band's right-of-publicity claim could proceed.
A soldier who said The Hurt Locker was built on his life lost to the First Amendment, which protects storytellers who transform real people into art on matters of public concern.
The Eighth Circuit held that a fantasy-sports operator's use of player names and statistics was protected by the First Amendment, overriding the players' right of publicity.
California's Supreme Court held that comic-book villains loosely based on musicians Johnny and Edgar Winter were transformative expression protected by the First Amendment.
The Tenth Circuit held that Cardtoons' parody baseball cards were protected First Amendment commentary that outweighed the players' union's Oklahoma right of publicity.
California's Supreme Court borrowed copyright's transformation idea to decide when celebrity art is protected speech, and held that literal Three Stooges drawings are not.
When a TV station aired a human cannonball's entire fifteen-second performance, the Supreme Court held the First Amendment does not immunize broadcasting a performer's complete act.
