Connecticut Law Review Volume 45 - Issue 5

UNNECESSARY ROUGHNESS: RECONCILING HART AND KELLER WITH A FAIR USE STANDARD BEFITTING THE RIGHT OF PUBLICITY

Two lawsuits have created a stir in the sports law community threatening to derail the NCAA’s monopoly on licensing the images of both present and former student-athletes. In both Keller v. Electronic Arts, Inc. and Hart v. Electronic Arts, Inc., former collegiate quarterbacks attack the NCAA, the CLC, and Electronic Arts for the unauthorized use of their likeness in the popular video game franchise NCAA Football. Recent scholarship has focused on the viability of the NCAA and how these cases may tear down any semblance of amateurism left in college sports. This Note, however, focuses on how these two cases have the potential to inform the relationship between the First Amendment and the right of publicity. Courts have struggled to devise a test that accurately represents this relationship, which has spawned myriad tests. What makes Keller and Hart the perfect test cases is that the cases deal with the exact same issue, yet come to the opposite conclusion. This Note traces the history and policy justifications of the right of publicity to derive a fair use standard befitting the right of publicity. The new fair use factors are then applied to Keller and Hart’s factual scenarios to show why the outcomes differ and what appellate courts should do in the future.

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