Although one of the clearest legal thinkers, Louis Brandeis, conceived the modern right of publicity, "unclear" would be an adjective all lawyers would apply to the current state of right of publicity law, regardless of which side of the issue they usually argue. Indeed, although the right of publicity concept was further developed by another very clear legal thinker, William Prosser, he himself alluded to it as the concept “that launched a thousand lawsuits,” few of which can be reconciled with one another.
The most extreme recent example of this lack of clarity is that two courts on opposite sides of the country have rendered diametrically opposed decisions on the rights of football players whose avatars appear in the same videogame, leaving lawyers in a difficult position when advising their clients on rights of publicity in the very active videogame space. This contradiction is not surprising: U.S. courts have used at least eight different tests to balance the individual’s right to control his or her own image against the First Amendment.
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