Federal district judge Claudia Wilken of Oakland, California ruled that college student-athletes are entitled to fair compensation for their efforts that generate revenue for their schools. She issued an injunction preventing the NCAA “from enforcing any rules or bylaws that would prohibit its member schools and conferences from offering their FBS football or Division I basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses in addition to a full grant-in-aid.” (USA Today, August 8, 2014, by Steve Berkowitz)
The Ninth Circuit Court of Appeals had rejected last year an appeal of Wilken’s judgment holding that the NCAA could not rely on the First Amendment to justify their use of student-athlete’s performance since there was not sufficient creative elements added to the athletes’ likenesses. (Polygon, July 31, 2013, by Samit Sarkar)
In his analysis of the clash between the First Amendment and the right to publicity, Lyle Denniston noted that the right of publicity was created under state, not federal law. The U.S. Supreme Court has rarely dealt with the issue ruling in 1977 that a broadcasting company had under Ohio law violated a circus performer’s rights when they aired the entirety of his act of being shot out of a cannon. Recently the “transformative use test’ has been in play determining whether publicity of a person’s acts was an literal imitation or endowed with some “significant creative element.” (Yahoo! News, August 12, 2014, by Lyle Denniston of the National Constitution Center)