Many states recognize a “right of publicity,” which prohibits the commercial use of an individual’s name, likeness, or identity without consent. When aspects of a well-known person’s identity are incorporated into an expressive work, however, what emerges is a tension between the individual’s right of publicity and the artist’s freedom of expression as protected by the First Amendment.

A recent New Jersey case involved Billy Mitchell, a former Donkey Kong world record holder with long black hair and a black beard, who sued Cartoon Network for allegedly misappropriating his likeness in episodes of the animated series The Regular Show. Cartoon Network did not dispute that its character — a disembodied floating head from outer space — was intended to evoke Mitchell. Instead, it argued that its use was “transformative” and, therefore, protected by the First Amendment.

The court determined that Cartoon Network’s use of Mitchell’s persona was transformative, emphasizing the significant corporeal differences between the human plaintiff and a giant floating head, as well as the obvious parody: Mitchell’s traits were exaggerated to create a cartoonishly evil character.

The Mitchell case contrasts sharply with the recent Electronic Arts cases in the U.S. Courts of Appeals for the Third and Ninth Circuits, which concerned the use of avatars of real college football players in a college football video game.

More: http://www.ilnipinsider.com/2016/05/can-the-first-amendment-trump-the-right-of-publicity/