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Abstract

The right of publicity is an established legal doctrine that grants individuals the exclusive right to control the commercial use of their image. Though it has many important and laudable uses, one unfortunate consequence of the right of publicity is that it restricts artists’ abilities to portray real persons in their works. In so doing, the right of publicity directly conflicts with the First Amendment protections of an individual’s freedom of expression.

While the U.S. Supreme Court addressed this tension in Zacchini v. Scripps-Howard Broadcasting Co., the Court did not create a clear standard for balancing the interests of each right. Without guidance from the Supreme Court, lower courts have developed four tests for balancing the right of publicity against the First Amendment: the relatedness test, the predominant purpose test, the transformative use test, and the ad-hoc balancing test.

Although most courts use only a single test to analyze the conflict between the right of publicity and the First Amendment, the Sixth Circuit, in ETW Corp. v Jireh Publishing Inc., relied on both the transformative use test and the ad-hoc balancing test to form its analysis. This Note proposes a test based on the Sixth Circuit approach, which creates a predictable standard for balancing the First Amendment against the right of publicity.

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