Untethered to a sufficient public policy interest, right of publicity claims have exploded nationwide. Plaintiffs have asserted claims against inspirational plaques featuring civil rights icons, Rosa and Raymond Parks Inst. for Self Dev. v. Target Corp., 812 F.3d 824 (11th Cir. 2016),artwork commemorating significant events, Moore v. Weinstein Co., LLC, 545 Fed. App’x. 405 , 407 (6th Cir. 2013); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003), Wikipedia edits that truthfully connected an astronaut with the watch he wore on his Moon walk, Scott v. Citizen Watch Co. of Am., Inc., 17-CV-00436-NC, 2018 WL 1626773 (N.D. Cal. Apr. 4, 2018), docudramas, de Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018), and depictions of a company named for its founder, Virag, S.R.L. v. Sony Computer Entm’t Am. LLC, 699 Fed. App’x. 667 (9th Cir. 2017), among many other uses. This Court has the opportunity to keep Indiana’s right of publicity law within more appropriate bounds by focusing on protection of performers against unauthorized recordings (similar to common-law copyright, as recognized in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)) and unauthorized use of identities in advertising (protecting against false endorsements).
The Court should take that opportunity, because a free-floating right of publicity operates as an unconstitutional, content-based regulation of otherwise truthful, protected speech. Given the First Amendment value of truthful, nondefamatory speech, courts should not lightly give the subjects of such speech control over it. Thus, the right of publicity must be carefully limited to avoid becoming a right to control public discourse. Cf. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988) (refusing to allow the tort of intentional infliction of emotional distress to evade the strict requirements of defamation as applied to editorial speech). Although the doctrine of constitutional avoidance might justify finding that these defendants’ activities do not fall within the scope of the Indiana statute, the statute is unconstitutional to the extent that it goes beyond advertising and unauthorized recordings of performances.
Brief of Amici Curiae Intellectual Property Law Professors, Daniels v. FanDuel, Inc., No. 18S-CQ-00134 (Ind. Sup. Ct. May 18, 2018)