Appeals Court Doesn't Think Putting Historical Figures In Video Games Is Free Speech

from the historical-history dept

Fri, Oct 9th 2015 12:48pm — Timothy Geigner

Everyone knew this was coming. With the expansion of publicity rights that is currently ongoing, and more specifically after the case between former NCAA players and Electronic Arts that effectively killed off college sports video games, it was only a matter of time before former professional players turned their sights on the Madden franchise. Now that a few former NFL players have filed a publicity rights suit against EA, we again will see the First Amendment go up against publicity rights. So far, for free speech advocates and champions of video games being art, it isn't going well.

Some background. In the NCAA case, former athletes successfully argued that the NCAA forcing them to sign away the rights to their likenesses in order to play their respective sports deprived those athletes of the ability to license their likeness to other game-makers. It's an important distinction, because in the case of former NFL players no longer affiliated with the players' union, no such signing away of rights ever occurred. Instead, this is a simple battle directly between Electronic Arts, a game producer, and former players over the rights to use their likeness. In the Madden franchise, for many years the games have included historical teams, such as championship winning or otherwise notable teams, which have included nameless and faceless but otherwise faithfully reproduced historical athletes from those teams. Gamers can play with those teams against other historical teams, creating something of a historical fiction episode of professional sports. Historical fiction, of course, is protected by the first amendment as art. According to a recent ruling by the 9th U.S. Circuit Court of Appeals, however, video games are to be treated differently.

The case against EA was brought by Michael Davis and Vince Ferragamo, both retired NFL players whose likenesses were reproduced (sans name or picture) in Madden's historical teams within the games. EA sought to have the case thrown out with an anti-SLAPP motion, arguing that it would be likely to win on several grounds. Included in those grounds was that the use of historical players' likenesses was transformative, that the publication of their game was in the public interest, and that its use of likenesses was artistically relevant to the game as a whole. The court didn't buy any of those arguments, most of which I understand, although the argument that the use of historical players in the game is transformative is at least an interesting one. But it's on the final argument EA made that the court seemed to go sideways in its logic. As reported by The Hollywood Reporter:

Finally, EA argued that the avatars were merely an incidental use. If the latest case makes its mark as precedent, it might be here. The 9th Circuit weighs the value, significance, purpose and duration of the use of the former players and comes away with a sense that the players' likenesses are worth something. Judge Fisher decides that "the former players’ likenesses have unique value and contribute to the commercial value of Madden NFL" and that "the former players’ likenesses are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL."

From the ruling:

EA advances one additional argument in this appeal – its use of former players’ likenesses is protected under the First Amendment as “incidental use.” We disagree. We hold EA’s use of the former players’ likenesses is not incidental, because it is central to EA’s main commercial purpose – to create a realistic virtual simulation of football games involving current and former NFL teams.

Except that this seems to be entirely too simplistic an approach by the court and doesn't treat the game as having artistic value. Other genres of art don't typically suffer under this kind of distinction. Historical fiction seems like the logical place to point, in which public figures of notoriety are re-imagined in fictional accounts. Why should that use be different than historical players being used to play football against teams they never played against? What makes historical fiction okay, but historical games not? In its ruling, the court never really answers this question, instead going back to the NCAA case over and over again and asserting that the questions raised by EA in this case have already been decided.

As a result, the 9th Circuit affirms the lower court's decision to deny EA's motion to strike. The opinion not only reiterates what the same appellate circuit said last year in a similar case involving college athletes — something that could be disconcerting to TV broadcasters who are now facing legal heat — but also underscores some of the ways that publicity rights can gain an edge over First Amendment rights, best illustrated up until now by No Doubt singer Gwen Stefani's victory over a game that used her avatar.

But then why should this case be different than the one brought by Manuel Noriega, where his likeness was used in Activision's Call of Duty game without his permission. In that case, in a different jurisdiction, the court ruled that the First Amendment outweighed any publicity rights Noriega may have had. If video games are art, and they most certainly are, than former NFL players objecting to the historical fiction that comes about from EA including historical teams in its games ought be outweighed as well on First Amendment grounds. The state laws are different, but the protection of the First Amendment is not. And keep in mind, the game only includes basic info about these players that are historically accurate for the time of the team represented (height, weight, age of the player at the time they were on the team). No names or pictures were included. And the court was well aware of the protection video games are supposed to have as artistic endeavors.

The plaintiffs concede that their suit arises from an act by EA in furtherance of its right of free speech under the First Amendment. Indeed, “[v]ideo games are entitled to the full protections of the First Amendment, because ‘[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas – and even social messages.’” Keller, 724 F.3d at 1270-71

The district court denied EA’s motion, however, concluding that the plaintiffs established a reasonable probability they will prevail on their claims. “‘Reasonable probability’ . . . requires only a ‘minimum level of legal sufficiency and triability.’”

And so the court refused to dismiss the case, which will now go trial. In that trial, we will learn whether California's publicity rights law will continue to value the desires of control of public figures over their own history or matters of art.

251866805 Davis (PDF)251866805 Davis (Text)

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Filed Under: 9th circuit, california, football, free speech, historical fiction, historical figures, madden football, michael davis, publicity rights, vince ferragamo
Companies: ea

40 Comments

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Anonymous Coward, 9 Oct 2015 @ 12:56pm

Overstating things
the players haven't won.

they only succeeded in getting to have a trial, at which they will likely loose.
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Anonymous Coward, 9 Oct 2015 @ 1:14pm

Public figures
“One of the Cleveland Browns once told me, that if he ever had to go on the lam from the law, he’d become an offensive lineman.”

——Jerry Kramer [Green Bay Packers 1958-68], Instant Replay [1968 book][New York Times Bestseller]

Does your average, historical, pro football player really fall into the category of notorious public figures?
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Jeremy2020 (profile), 9 Oct 2015 @ 1:22pm

If EA had to license players likenesses those two guys still wouldn't make any money because they simply would have ignored them because no one knows wtf they are...
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Anonymous Coward, 9 Oct 2015 @ 1:37pm

Maybe they can change the name to Madden Handegg 20XX and claim it's parody.
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Anonymous Coward, 9 Oct 2015 @ 1:41pm

Re: Public figures
A backup guard is not nearly on the same level as Manuel Noriega, who was a head of state. On the other hand, they WERE playing in a stadium with tens of thousands of fans, and possibly with millions more watching on TV. That's pretty public.

Furthermore, if all they're using is basic info like height/weight/age without pictures, I'm not sure if the players can really claim that it's a "likeness". If they were getting into details like tattoos and nose shape, sure. But just showing a 6-2 222 lb player in the quarterback position does not really make that a "likeness" of anyone in particular.

It's a fact that player X played for team Y at time Z. If they aren't using the player's actual picture, that fact should be able to be used, without permission from anyone, whether in a newspaper article the next day or a video game 40 years later.
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Anonymous Coward, 9 Oct 2015 @ 1:45pm

Using historical characters such as George Washington and Abraham Lincoln are one thing. But using likenesses of people who are still alive is NOT a historical figure despite the flimsy ass excuses that EA is trying to float.

EA decided that it didn't want to pay retired football players for using their likenesses and they're trying to pull a fast one with the courts.

Either pay up or stop using the likenesses of retired football players. EA is making millions of dollars off these sports games and it's time that they started compensating these players fairly.
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Mike Masnick (profile), 9 Oct 2015 @ 2:22pm

Re: Overstating things
the players haven't won.

That's pretty clearly stated in the article, so not sure why you say it's overstated.

they only succeeded in getting to have a trial, at which they will likely loose.

Assuming you mean "lose," if that were the case, then this round would have turned out different. The court did not find a likelihood of success in EA's case here...
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Toestubber (profile), 9 Oct 2015 @ 2:46pm

Re:
But using likenesses of people who are still alive is NOT a historical figure

Quite an interesting concept of what constitutes "history" you have there. What is it, life +70 years?
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Anonymous Coward, 9 Oct 2015 @ 2:50pm

Re: Re: Public figures
Furthermore, if all they're using is basic info like height/weight/age without pictures, I'm not sure if the players can really claim that it's a "likeness".
See footnote 1, on p.5 of the opinion:
For purposes of this appeal, EA concedes the Madden NFL series uses the plaintiffs' likenesses.
When defendant “concedes” the issue, then the players do indeed get to really claim that it's a likeness.
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Zonker, 9 Oct 2015 @ 4:00pm

Strange, I don't see any form of "publicity rights" mentioned anywhere in our Constitution or Bill of Rights. I do, however, see the very first right reserved in the Bill of Rights is the freedom of speech. That means that legally the right to free speech takes precedence over any such "publicity rights" claimed under Federal, State, or local law.

I don't see how Constitutionally there is any room for debate over any balancing of rights here. Free speech rights are protected at the highest level, publicity rights are not.
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Bobbobberts (profile), 9 Oct 2015 @ 4:22pm

Tupac? Gene Kelly? Ya gotta pay....
Way offside in your arguments. Players, persons, living or dead have a right to protect their image rights when others are exploiting it for a commercial interest. And that is that EA is doing. It may have artistry, but it intent and product is purely commerce.

In the case of the players, sports games are dependent on recognition of those specific and unique identities. EA is not creating those identities, it is copying it ... Literally in motion capture and digitalization image. In stats, etc. It's doesn't add more, in any artistic sense. In fact, consumer are buying the games specifically for that realism. I'd expect madden16 to have.a deflate ball option.

Also: No different from other avatars ... Like the use of digitized Gene signing in the rain for VW, or a hologram Tupac. Those commercial and legal rights are founded in pretty strong moral rights.

Frankly, as despicable as Noriega was, that judgement was rediculous..
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Anonymous Coward, 9 Oct 2015 @ 5:27pm

Re: Tupac? Gene Kelly? Ya gotta pay....
Yes and no. In general, works of fiction based on historical events have been found to be an exercise in free speech, and therefore not subject to violations of imaging rights by those depicted in them. This concept has been applied to both book and film adaptations, in the general category of historical ficiton. The argument here is that this is a similar situation, applying past events into a fictional framework.

Whether that's a good argument or not, I don't know. But nobody here is arguing that people don't have rights to control their image in commercial settings.
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Anonymous Coward, 9 Oct 2015 @ 5:53pm

Re: Re: Tupac? Gene Kelly? Ya gotta pay....
"Purely incidental" they argued. I would have considered that unwise, as the counter is "then you can take them out without harming the game. So what's the big deal?"
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Anonymous Coward, 9 Oct 2015 @ 6:00pm

I'd just change their names in game to something utterly embarrassing

yesterdays game is history.
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Anonymous Coward, 9 Oct 2015 @ 6:55pm

Cert Petition
Petition for a Writ of Certiorari (Oct 5, 2015)
QUESTION PRESENTED

Whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.

(H/T “EA Takes Right-of-Publicity Case to Supreme Court”, by Vanessa Blum, The Recorder, Oct 7, 2015)
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Anonymous Coward, 9 Oct 2015 @ 7:05pm

Re: Tupac? Gene Kelly? Ya gotta pay....
"Way offside in your arguments. Players, persons, living or dead have a right to protect their image rights when others are exploiting it for a commercial interest."

History books are going to get pretty expensive if the publishers have to pay off everyone or their heirs that they write about. What a future.
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Anonymous Coward, 9 Oct 2015 @ 7:08pm

Re:
"Using historical characters such as George Washington and Abraham Lincoln are one thing."

What makes them any different?
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Anonymous Coward, 9 Oct 2015 @ 7:51pm

Re:
Uh, "included historical teams, such as championship winning or otherwise notable teams, have included nameless and faceless but otherwise faithfully reproduced historical athletes"

According the the text above the names are already different as are the faces.
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Anonymous Coward, 9 Oct 2015 @ 7:53pm

Re: Re:
Nevermind, You are right they actually should do exactly what you said.
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Anonymous Coward, 9 Oct 2015 @ 9:02pm

Instead of using retired football players, howabout creating their own faceless characters such as "Joe Whitebread"? Oh, that's right, EA wants to use the likenesses of Joe Namoth and so forth because that's "name brand recognition" and those players are what sells the game.

The morons need to stop defending EA. They also keep forgetting that EA is in the business of making money off the faces of celebrity football players and that they are doing so to make money. I don't see EA compensating these former football players for using their likenesses in these games.

Either pay up or STFU.
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Mike Masnick (profile), 10 Oct 2015 @ 12:40am

Re: Tupac? Gene Kelly? Ya gotta pay....
Way offside in your arguments. Players, persons, living or dead have a right to protect their image rights when others are exploiting it for a commercial interest. And that is that EA is doing. It may have artistry, but it intent and product is purely commerce.

That is not, actually, the law. California's law was rather specific to preventing such uses *for advertising purposes* and not for just any old commercial use.

It may be what you think the law is, but it's not what the law is.

In the case of the players, sports games are dependent on recognition of those specific and unique identities. EA is not creating those identities, it is copying it ... Literally in motion capture and digitalization image. In stats, etc. It's doesn't add more, in any artistic sense. In fact, consumer are buying the games specifically for that realism. I'd expect madden16 to have.a deflate ball option.

You're picking a standard that has nothing to do with the case. It's not about whether or not EA created anything. It's about whether those names/likenesses are "protectable" under the law, or whether their use is covered by the First Amendment.
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Mike Masnick (profile), 10 Oct 2015 @ 12:44am

Re:
Instead of using retired football players, howabout creating their own faceless characters such as "Joe Whitebread"? Oh, that's right, EA wants to use the likenesses of Joe Namoth and so forth because that's "name brand recognition" and those players are what sells the game.

Yes. What's wrong with that?

The morons need to stop defending EA. They also keep forgetting that EA is in the business of making money off the faces of celebrity football players and that they are doing so to make money. I don't see EA compensating these former football players for using their likenesses in these games.

That's true, but that's because there's a pretty strong argument that the company doesn't need to. It's using *factual* information in a game. Why should it need to compensate for that?
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Anonymous Coward, 10 Oct 2015 @ 4:21am

Of course the NFL players are free to help an indie studio develop a complete and utter piss-take of Electronic Arts and how it buys out rival studios just to shut them down, issues threats of physical violence to people who refuse to transfer their copyright to the company, embezzles money gained from game royalties etc etc..

Just need 'likenesses' of EA shareholders/execs/CEO etc (without names of course!).....
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Anonymous Coward, 10 Oct 2015 @ 4:22am

call it Electrical Artistry.....
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Anonymous Coward, 10 Oct 2015 @ 11:02am

This article confuses me.
SO, what am I supposed to take away from it?
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Anonymous Coward, 10 Oct 2015 @ 8:35pm

Re: Re: Tupac? Gene Kelly? Ya gotta pay....
EA should sponsor some fanfic or animated shorts based specifically on Michael Davis and Vince Ferragamo.
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Anonymous Coward, 11 Oct 2015 @ 4:52am

Re: Re: Tupac? Gene Kelly? Ya gotta pay....
I am confused by your stance. If these people are not compensated, then what is to stop a money making entity from using these players as Max Headroom type announcers, movie actors, rap artists.....These players worked to develop a personification by playing a sport. They should own that aspect of their lives. Maybe I am finding the argument difficult because entertainment people do have a certain amount of ownership of their public lives. And I don't see any difference between the players and actors.

If EA were to give the games away, then that would be 'free' speech.;)
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Anonymous Coward, 11 Oct 2015 @ 8:51am

Re: Re: Re: Tupac? Gene Kelly? Ya gotta pay....
These players worked to develop a personification by playing a sport. They should own that aspect of their lives.
You should recognize your own argument: You're putting forth a sweat-of-the-brow argument for the ownership of facts.

We've seen that argument before, in the copyright context. But in the copyright context, it has been established that facts belong in the public domain. Further, that fundamental assignment has constitutional dimension. In the collision between copyright and free speech, it's constitutionally essential to keep facts free for all to use.

Labeling a firmly-rejected copyright theory as a right-of-publicity should not save that theory. Don't confuse through mere labels. No one ought to have a commercial monopoly in the bare truth.

A right to license is the right to suppress.
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jupiterkansas (profile), 11 Oct 2015 @ 9:06am

Re: Re:
They're not alive to sue.
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Anonymous Coward, 11 Oct 2015 @ 9:26am

Re: Re: Tupac? Gene Kelly? Ya gotta pay....
California's law was rather specific to preventing such uses *for advertising purposes* and not for just any old commercial use.
Yes, it was. Past tense. California Civil Code § 3344 was originally enacted in 1971. In 1984, it was amended. It now reads:
(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, OR for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent…
(Bold and all-caps added.)
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The Red Jaguar, 11 Oct 2015 @ 10:27am

Supreme Court petition
The 9th Circuit issued its decision in January. The 9th Circuit denied rehearing in July. EA has petitioned the Supreme Court for certiorari on October 5 (see http://www.supremecourt.gov/search.aspx?filename=/docketfiles/15-424.htm).
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Anonymous Coward, 11 Oct 2015 @ 11:28am

Isn't the NFL & NFLPA paid handsomely for the rights by EA to make this game. Shouldn't the players be suing those organizations instead of EA? I know there is a lot of anti-EA feelings out there (they haven't been the best company ever), but it seems like a lot of people hating on a company just to hate.
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El Mariachi (profile), 11 Oct 2015 @ 9:46pm

Re:
You’d think the NFL/PA would look out for their former members in contract discussions with EA… but emphasis on “former.”

None of these organizations have a sterling reputation for ethical behavior to begin with, and if doing the right thing involves additional effort and cost (disbursing royalties to the retirees,) I wouldn’t expect them to lift a finger.
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Eldakka (profile), 12 Oct 2015 @ 12:02am

While I don't like Engender Antipathy as a company, I am rooting for it in this instance.
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PaulT (profile), 12 Oct 2015 @ 12:43am

Re:
"But using likenesses of people who are still alive is NOT a historical figure"

So, you're saying that Mikhail Gorbachev is not a historical figure, but he magically achieves that status the second he expires? That people should pay him for publicity rights, fair use be damned? Really? Or, is this only applicable to people famous for kicking a ball?

"it's time that they started compensating these players fairly"

Define "fairly".
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PaulT (profile), 12 Oct 2015 @ 12:50am

Re: Tupac? Gene Kelly? Ya gotta pay....
" Players, persons, living or dead have a right to protect their image rights when others are exploiting it for a commercial interest"

How does a dead person "protect their rights"? Why was this never an issue until recently?

How long does this last - are you saying that Shakespeare's estate should be responsible for paying Julis Caesar's descendants or that the play should be blocked, for example, or is there a point where it's clear that this is as stupid as it is insane?

"Frankly, as despicable as Noriega was, that judgement was rediculous."

Why? There's a million examples of historical figures being used in similar ways in art, film, TV, books, theatres, even music as well as games. Why is this suddenly such a big problem, and why does the massive level of precedent not count?
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Anonymous Coward, 12 Oct 2015 @ 2:57pm

Re: Re: Re: Re: Tupac? Gene Kelly? Ya gotta pay....
'We've seen that argument before, in the copyright context. But in the copyright context, it has been established that facts belong in the public domain. Further, that fundamental assignment has constitutional dimension. In the collision between copyright and free speech, it's constitutionally essential to keep facts free for all to use.'

No. What I am saying is these players, who work in an entertainment industry, own the rights of their personifications as any actor would. The EA game crosses the line when they use not only the physical characteristics of the player, but also their names and/or likenesses. The easy way around the California law is to sign them up young or use imaginary players. The use the stats is not in question here. That is obviously in the public domain.(see the other post to Mike's that gives the pertinent Cal. code)
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John Fenderson (profile), 12 Oct 2015 @ 3:52pm

Re: Re: Re: Re: Re: Tupac? Gene Kelly? Ya gotta pay....
"What I am saying is these players, who work in an entertainment industry, own the rights of their personifications as any actor would."

It depends on the state they're in. What you're talking about is a privilege that is only afforded in some states, not by national law.

Also, this is not a copyright issue at all. It invovles a different body of law.
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PaulT (profile), 13 Oct 2015 @ 1:25am

Re: Re: Re: Re: Re: Tupac? Gene Kelly? Ya gotta pay....
So, were you also raving against people playing Shakespeare, Einstein, Caesar, Elizabeth I and imitating their likenesses in movies? Do you regularly attack Elvis impersonators and Beatles cover bands? Or, is this a recent rant just because people are doing it digitally?
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Anonymous Coward, 13 Oct 2015 @ 11:22am

Re: Re: Re: Re: Re: Re: Tupac? Gene Kelly? Ya gotta pay....
Also, this is not a copyright issue at all. It invovles a different body of law.
In a wide variety of contexts, both within and without the field of “intellectual property”, the U.S. Supreme Court has consistently and carefully declined to answer the question of whether publication of the truth on a matter of public concern may ever be punished or sanctioned. Ever? The Court has made clear, however, that any such punishment or sanction is unconstitutional absent a state interest of the highest order.(*)

That is a First Amendment issue.

In the copyright context, specifically, the Court has repeatedly limned “a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts.”(**) Copyright's merger doctrine allows for even the free reuse of expression wherever a commercial monopoly on that expression would amount to a commercial monopoly on facts—notwithstanding copyright's constitutional support in Art. I, Sec. 8, Cl. 8, which is undoubtedly of the highest constitutional order.

California has chosen to recognize another species of “intellectual property.”(***) That species is indeed divorced from copyright. It is a new species, unknown to the founders. But, as the state has also recognized, that peculiar species does not escape bounds commanded by the First Amendment. Lessons from the copyright context may illustrate the law of the Constitution of the United States.

(*) Florida Star v BJF (1989), quoting Smith v Daily Mail (1979).
(**) Eldred v Ashcroft (2003), quoting Harper and Row v Nation (1985), in turn citing New York Times v United States (1971).
(***) Comedy III v Saderup (Cal. 2001).
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