Transforming the Judicial Tests for Balancing Publicity Rights and the First Amendment: Protecting the Rights of Amateur Athletes

摘要

As the Supreme Court has noted, "No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay." With respect to college athletes, courts should be mindful of the fact that NCAA rules prohibit student athletes from commercially exploiting their personas, which makes them especially vulnerable to unfair and socially unproductive commercial exploitation by others."For this reason, the Court appreciates the plight of college players who are prohibited by NCAA bylaws from entering into licensing agreements and other "commercial opportunities" during their playing years." Courts should also keep in mind that as the Supreme Court has directed in eBay v. MercExchange, LLC,the recognition of an intellectual property interest does not inevitably lead to the imposition of injunctive relief. Consequently a portion of the revenues generated by the unauthorized use may be plaintiff's appropriate remedy. Such an approach acknowledges the social importance of the right of publicity, and further, is commensurate with the Supreme Court's admonitions regarding the preservation of the right of publicity development incentives and social benefits.