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Checklist and Commentary on Defenses for Right of Publicity Claims

BY Schuyler M. Moore
May 01, 2016

This article is Part Two of a two-part series. Part One appeared in the April issue of Entertainment Law & Finance. Part Two starts with a continuation of the author's discussion of First Amendment defenses to right of publicity claims.

However, there are some difficulties with the “predominant purpose” test. First, assuming the work does make an expressive comment about the plaintiff, does it permit use of a private person's persona, such as girls caught flashing in the Girls Gone Wild videos? And what if the “expressive comment” is the image itself, such as a picture book of celebrities? How is the finder of fact supposed to distinguish a “predominant purpose” of making an expressive comment from that of making a buck, when the two go hand in hand?

In any event, there is a three-way split of authority on whether expressive works are protected by the First Amendment. An interesting example is the plaintiff who flashed her breasts in public and found herself prominently featured in one of the infamous Girls Gone Wild videos. A Florida court held that the video was entitled to carte blanche protection as an expressive work. Lane v. MRA Holdings LLC, 242 F. Supp.2d 1205 (M.D. Fla. 2002). (But see, Topheavy Studios Inc. v. Jane Doe, 03-05-00022-CV (Texas Ct. App. 2005), holding to the contrary on identical facts.)

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