Intercepting Licensing Rights: Why College Athletes Need a Federal Right of Publicity

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Talor Bearman · 15 Vand. J. Ent. & Tech. L. 85

Abstract

The right of publicity is the right of an individual to control the commercial use of her name, image, likeness, or other identifiable aspects of her persona. In the United States, the right of publicity is a state-law right, not federal, and recognition of the right varies significantly from state to state. The lack of uniformity among states poses significant problems for individuals who are recognizable throughout the United States. Specifically, student athletes, who would lose the ability to play college athletics if they were reimbursed for the use of their images, are among the individuals most at risk of inequitable treatment resulting from varied state laws. This inequality recently manifested itself when two former college quarterbacks alleged that Electronic Arts, Inc.’s depiction of football players in its NCAA Football game used their likenesses without compensation. One quarterback brought his case in California, the other in New Jersey. Despite the similarity of the facts, however, the district courts reached opposite conclusions. This Note examines those two cases and recommends that Congress create a federal right of publicity to better protect student athletes.