The right of publicity is an offshoot of state privacy law that gives a person the right to limit the public use of her name, likeness, or identity for commercial purposes. A limited version of this right makes sense. For example, you should be able to prevent a company from running an advertisement that falsely claims that you endorse its products. But the right of publicity has expanded well beyond its original boundaries. Today, it potentially covers just about any speech that “evokes” a person’s identity. Celebrities have brought right of publicity cases against movies, songs, magazine features, and computer games.

Right of publicity cases raise important freedom of expression issues. When celebrities claim that a TV show or some other work violates their right of publicity, the cases effectively ask whether celebrities should have a veto right over creative works that depict them. Courts have struggled to develop a coherent test for how the First Amendment should apply in these cases.

EFF has filed amicus briefs in support of TV studios, Internet platforms, computer game publishers, in lawsuits where the right of publicity has clashed with the First Amendment. We will continue our work in this area to ensure that right of publicity claims are limited by robust free speech protection.