The right of publicity has traced a long arc since Hugo Zacchini, the human cannonball, was shot from a cannon in 1972. That year, a TV news report included Zacchini's entire act from ignition to landing without his permission; Zacchini then sued claiming that his right of publicity had been violated.1 Balancing that right with the First Amendment defense of the broadcaster, the U.S. Supreme Court ruled that free speech had been trumped by the plaintiff's need to earn a living by attracting visitors who hadn't seen his act.
Several weeks ago in Hart v. Electronic Arts,2 the U.S. Court of Appeals for the Third Circuit returned to the same jurisprudential territory in an updated mode: This time, the unauthorized use was an avatar in a football video game that resembled the plaintiff—a former star quarterback at Rutgers—in physical appearance, team membership, the number on its jersey, and statistics. The majority opinion by Judge Joseph A. Greenaway Jr. acknowledged that depicting the player in a video game was no less protected by the First Amendment than featuring him in a film or book. But as in Zacchini, the court held that the plaintiff's right of publicity outweighed the defendant's right of free speech.
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