Michael K. Park


Recent application of the right of publicity doctrine to interactive media has led to inconsistent rulings and uncertainty as to the doctrine's scope when pitted against First Amendment considerations. These recent court decisions have inadequately explained the disparate application of legal principles, raising serious free speech concerns for expressive activities with other emerging interactive media platforms such as virtual reality. However, these recent decisions have unveiled discernible principles that help explain the disparate approach of the right of publicity doctrine to new interactive media.

This Article articulates the assumptions guiding the disparate application of the right of publicity doctrine. This Article begins with a historical overview of the right of publicity doctrine and the various approaches adopted by the courts. It will then focus attention on the transformative work test and address the recent analytical pivot from a holistic examination of the interactive work "as a whole" to a myopic focus on the individual avatar-by employing a natural rights theory argument to explain the courts' narrow approach to transformativeness. Furthermore, this Article makes the case that the courts' discordant doctrinal treatment of interactive entertainment media is premised in the misplaced notion that the medium lacks artistry and authorial signature (i.e., interactive games are not art, but rather craft). Finally, this work advances the argument that while today's interactive games present rich historical and pedagogical content, courts have failed to adequately apply common law and statutory exemptions that not only include news, but works of fiction, entertainment, public affairs, and sports accounts, from right of publicity liability.