Although the right of publicity has been recognized as a distinct common-law doctrine since 1953, only in recent years have courts begun to take the First Amendment seriously as a limit on the extent to which sports figures and other celebrities can use the doctrine to control the use of their images. It is widely recognized that the government may prohibit false and misleading speech, such as an advertisement that falsely implies an endorsement of a product by an individual, without violating the First Amendment. Similarly, it is generally acknowledged that the First Amendment protects the depiction of celebrities in news reports and in movies and television "docudramas." But in between these two paradigms, less agreement exists. Who is entitled to profit from the depiction of celebrities in a variety of non-advertising, non-news reporting and non-narrative contexts, such as baseball cards, collectible plates, T-shirts, figurines, calendars, and posters? Should control rest with the artist who creates the image, or the celebrity who is being depicted?
Tyler T. Ochoa,
Introduction: Tiger Woods and the First Amendment
, 22 Whittier L. Rev. 381
Available at: http://digitalcommons.law.scu.edu/facpubs/86