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Transformative Use Musings
The California Supreme Court has accepted “transformative use” as a First Amendment defense to a right-of-publicity claim for more than a decade. Comedy III Productions Inc. v. Gary Saderup Inc., 25 Cal.4th 387 (Cal. 2001). A transformative use may occur when the raw materials of an individual's persona are incorporated into a new work that contains a sufficient amount of its own expression.
Judges in right-of-publicity cases have debated whether a transformative use should be determined based on the new work as a whole, or specifically on how a plaintiff's persona is included in the new work. The issue recently came up before the U.S. Court of Appeals for the Ninth Circuit, in the class action suit by former college athletes who claim Electronic Arts (EA) violated their rights of publicity with the NCAA Football video game. In re: NCAA Student-Athlete Name & Licensing Litigation, 10-15387 (9th Cir. 2013).
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