Lessons Businesses & Public Figures Can Learn from NCAA Football Players

Businesses who use celebrities to endorse their products should pay attention to two recent decisions, as should celebrities and other public figures.

In two recent cases, former college football players filed suit against Electronic Arts, Inc., better known as EA, the maker of video game "NCAA Football."  The two primary plaintiffs were Ryan Hart, who played quarterback for Rutgers in the early 2000s, and Samuel Keller, who was QB at Arizona State in the mid 2000s.


Although EA never used the players' names, it honed in on real-life details of each player, including jersey number, jersey color, type of helmet and facemask, player height and weight, physical appearance, and throwing and interception stats.  The players sued on behalf of themselves and other players.  The heart of each suit was that EA had violated their right of publicity.

The right of publicity is a creature of state law and, although they have a lot in common, all 50 states treat the right of publicity differently.  Typically a plaintiff must show the a defendant used an individual's name, photograph or likeness to advertise goods or services without the plaintiff's prior consent.  The right typically covers any form of an individual's likeness or persona.  For example, Bette Midler sued when Ford used someone who sounded like her to promote a car in a song, and Vanna White sued Samsung for using a robot dressed in a wig, gown and jewelry to turn letters on a game resembling Wheel of Fortune.  The right also typically covers any medium, from photographs to films to video games.

In these two most recent cases, EA argued that it had a First Amendment right to use these college players' likenesses in its video games.  The Third Circuit and Ninth Circuit Courts of Appeals acknowledged that a First Amendment right of expression extends to video games but held that the players' right of publicity trumped EA's First Amendment right.  The courts both employed the "Transformative Use" balancing test and concluded that EA's video game failed to transform the players' likenesses.  The dissenting judges in both cases disagreed, finding that the video games were highly transformative, given that gamers have the ability to change the avatars' appearances and to never encounter Hart or Keller if they so choose.

Businesses who utilize the images and personas of public figures and celebrities should always obtain consent prior to using the image.  Celebrities often give consent to have their songs recorded and published (a right governed by copyright), but that consent often does not encompass the right of publicity.  Celebrities should always check to see to what extent they have consented to having their right of publicity used.  The right of publicity continues to be one of the most rapidly changing and evolving areas of intellectual property law.

Tucker Herndon and James Mackler Named in Nashville Post's Law Leaders Rising List

Law Leaders Rising

A strong group of young attorneys is making its mark on Nashville’s legal scene.

Published January 10, 2012

by Philip Nannie

Nashville has long been respected for its legal community, a business sector often defined by seasoned law professionals with stellar resumes and, in some cases, national notoriety. And for years, that community was defined in large part by men who earned their JDs at the Nashville School of Law, the University of Tennessee or Vanderbilt University.

However, Nashville’s impressive array of attorneys would not be as noteworthy without a cadre of young guns, often 20- and 30-somethings making major names for themselves. They have attended law schools throughout the nation, they have interesting legal specialties and they are — like the city in which they practice — far more diverse than their peers of a generation or even a mere 10 years ago.

In an attempt to highlight the best of this strong crop of fast-rising legal stars, Nashville Post interviewed dozens of local attorneys to solicit feedback. Based on the pros’ recommendations and our own research, we whittled down an impressive pool of dozens of candidates to the arbitrary number of 21. We did not include partners unless they started their own firms and we sought out a mix of industry specialists and emerging all-rounders. Together, they make up Nashville Post’s first Law Leaders Rising list.

Congratulations to Tucker Herndon and James Mackler:

Tucker HerndonMember
Bone McAllester Norton

Comments like “outstanding young lawyer,” “amazing worth ethic” and “effective leader” are a mere sampling of what folks around here think of the 2008 graduate of the Nashville School of Law. And, despite Herndon’s relative few years in the legal trenches, we consistently heard people say they were surprised to learn how young he was upon meeting him. Nevertheless, Herndon has impressed. His law practice centers on commercial lending, creditors’ rights, foreclosure and general real estate law. And, he has earned a unique reputation as the local “go to” attorney for expertise in alcohol beverage licensing and the regulatory and compliance aspects of that area of the law.

James MacklerMember
Bone McAllester Norton

Mackler, a New York City native, Duke University graduate and alumnus of the University of Washington School of Law, was contentedly practicing law in Denver before Sept. 11, 2001, changed his world — and a little more than most. Inspired by those events, Mackler walked away from the Denver law practice he’d spent seven years building and, by an amazingly circuitous route, found himself in the cockpit of a Blackhawk helicopter with the 101st Airborne serving missions in Iraq.

After an intense one-year deployment, Mackler returned to the U.S. Army Judge Advocate General Corps office, serving as legal advisor there, before relocating to Nashville in 2011 and affiliating with the Bone McAllester firm.

Click here for the entire article (subscription required)

Stephanie Taylor and Rob Pinson speak to International Bluegrass Music Association

Moderator: Richard Tucker

Panelists: R.J. Stillwell, Sound Healthcare; Greg Cahill, Foundation for Bluegrass Music; Stephanie Taylor, Bone McAllester Norton PLLC; Rob Pinson, Bone McAllester Norton PLLC

Even though you may be a young artist or sideman, it’s not too early to think about taking care of yourself when it comes to estate planning, health, accident and life insurance, instrument insurance and retirement. For those of you approaching middle age and beyond, have you given any thought as to who you’d like to be beneficiaries of your lifetime in bluegrass, including how you would like to be remembered in the bluegrass world?  What will be your legacy, your way to keep “the circle unbroken.…”  Join our discussion this afternoon to think carefully about planning your future.