No.

13M54
IN THE

Supreme Court of the United States

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

Petitioner,
v.
SAMUEL MICHAEL KELLER, et al.,
Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals
for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF OF A&E

TELEVISION NETWORKS, THE ASSOCIATED
PRESS, BLOOMBERG L.P., DISCOVERY
COMMUNICATIONS, LLC, DOW JONES &
COMPANY, INC., ESPN, INC., THE HEARST
CORPORATION, NATIONAL PUBLIC RADIO,
INC., NEWS CORPORATION, RADIO
TELEVISION DIGITAL NEWS ASSOCIATION,
AND REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS AS AMICI CURIAE
IN SUPPORT OF PETITIONERS MOTION FOR
LEAVE TO INTERVENE

NATHAN E. SIEGEL*
SHAINA JONES WARD
LEVINE SULLIVAN KOCH &
SCHULZ, LLP
1899 L Street, NW, Suite 200
Washington, DC 20036
(202) 508-1100
nsiegel@lskslaw.com
*Counsel of Record

Counsel for Amici Curiae

[Additional Counsel Listed on Inside Cover]

WILSON-EPES PRINTING CO., INC. (202) 789-0096 WASHINGTON, D. C. 20002

Of Counsel:
DARCI J. BAILEY
A&E TELEVISION
NETWORKS
235 East 45th Street
New York, NY 10017
Counsel for A&E Television
Networks, LLC
LAURA MALONE
KAREN KAISER
THE ASSOCIATED PRESS
450 West 33rd Street
New York, NY 10001
Counsel for The
Associated Press
RANDY L. SHAPIRO
BLOOMBERG L.P.
731 Lexington Avenue
New York, NY 10022
Counsel for
Bloomberg L.P.
SAVALLE SIMS
DISCOVERY
COMMUNICATIONS, LLC
One Discovery Place
Silver Spring, MD 20910
Counsel Discovery
Communications, LLC

MARK H. JACKSON
JASON P. CONTI
JACOB P. GOLDSTEIN
DOW JONES &
COMPANY, INC.
1211 AVENUE OF THE
AMERICAS 7TH FLOOR
NEW YORK, NY 10036
Counsel for Dow Jones &
Company, Inc.
DAVID PAHL
ELEANOR DEVANE
ESPN, INC.
ESPN Plaza
Bristol, CT 06011
Counsel for ESPN, Inc.
EVE BURTON
JONATHAN DONNELLAN
THE HEARST CORPORATION
300 West 57th Street
New York, NY 10019
Counsel for The Hearst
Corporation
KATHLEEN KIRBY
WILEY REIN LLP
1776 K Street NW
Washington, DC 20006
Counsel for Radio Television
Digital News Association

MARK H. JACKSON
EUGENIE C. GAVENCHAK
NEWS CORPORATION
1211 Avenue of the
Americas
New York, NY 10036
Counsel for News
Corporation
DENISE LEARY
ASHLEY MESSENGER
NATIONAL PUBLIC RADIO,
INC.
1111 N. Capitol Street NE
Washington, DC 20002
Counsel for National Public
Radio, Inc.

BRUCE BROWN
GREGG P. LESLIE
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1101 Wilson Blvd
Suite 1100
Arlington, VA 22209
Counsel for Reporters
Committee for Freedom of
the Press

MOTION FOR LEAVE TO

FILE AMICUS CURIAE BRIEF
Pursuant to Supreme Court Rule 37.2, A&E
Television Networks, The Associated Press,
Bloomberg L.P., Discovery Communications, LLC,
Dow Jones & Company, Inc., ESPN, Inc., The Hearst
Corporation, Radio Television Digital News
Association, and Reporters Committee for Freedom
of the Press respectfully move this Court for
permission to a file a brief amicus curiae in support
of Petitioners Motion for Leave to Intervene to File a
Petition for Writ of Certiorari.1
Proposed amici are companies that create and
disseminate a wide variety of factual, fictional, and
expressive
content,
along
with
non-profit
organizations whose members are content creators.
Proposed amici gather and report news; produce and
develop films and television programs; write fiction
and non-fiction; publish magazines; and run websites
with informational, educational and entertainment
content, among other things.
As content creators, all proposed amici expend
considerable resources in an effort to comply with
Pursuant to Sup. Ct. R. 37.2 and 37.6, no counsel for a party
authored this brief in whole or in part. No party or their
counsel made any monetary contribution to fund the
preparation or submission of this brief. The amici curiae
provided all funds used for the preparation and submission of
this brief. Counsel of record received timely notice of the intent
to file this brief. Counsel for Petitioner NCAA consents to the
filing of this brief, while Counsel for Respondent Samuel Keller
does not consent. If Electronic Arts position is relevant, it
consents.
1

what amici contend are vague and unpredictable

legal standards that presently govern the right of
publicity in the lower courts. Proposed amici seek to
file the accompanying brief to ask this Court to grant
Petitioners motion to intervene to file a petition of
certiorari so that the Court may clarify those
standards in a manner that is consistent with the
First Amendment. Many of the proposed amici filed
an amicus brief in the court below, Keller v.
Electronic Arts, Ninth Cir. No. 10-15387, as well as
in Brown v. Electronic Arts, Ninth Cir. No. 09-56675.
The Ninth Circuits decision below, as well as
the Third Circuits recent decision in a virtually
identical case, Hart v. Electronic Arts, Inc.,
717 F.3d 141 (3d Cir. 2013), are the most significant
cases decided to date by the Circuits concerning the
relationship between the right of publicity and the
First Amendment. The proposed brief amicus curiae
discusses how the impact of these cases extends far
beyond their effect on the actual parties in the Ninth
Circuit. Proposed amici submit that consideration of
the issues discussed in the proposed brief is therefore
particularly relevant to this Courts decision
regarding whether it will grant the motion to
intervene of a party that did not participate in the
Ninth Circuit appeal.

Amici have reviewed the arguments made in

the proposed petition filed by the Petitioner, and
believe that the points made regarding the legal
issues presented by this case, and the perspectives
offered, do not duplicate the petition. This brief
focuses on offering the Court a broader perspective

on the relationship between the right of publicity,

intellectual property law, and the First Amendment,
as it has affected producers and disseminators of
expression, like these proposed amici, over the past
several decades. The proposed amici respectfully
suggest that their brief, addressing the concerns of
these content providers, will aid the Court as it
considers the Petitioners motion and proposed
petition.
This motion is being filed within 30 days of the
Petitioners filing of its Motion to Intervene, and ten
days before the Respondents response to that motion
is due to be filed. The Respondents will therefore
have a full opportunity to address any of the points
raised by this proposed brief, and will suffer no
prejudice if the Court grants this motion for leave to
file.

Wherefore,
proposed
amici respectfully
request this Court to grant its motion for leave to file
their accompanying Brief Amicus Curiae.
Respectfully submitted,
Nathan E. Siegel

Counsel of Record
Shaina Jones Ward
LEVINE SULLIVAN KOCH &
SCHULZ, LLP
1899 L Street NW, Suite 200
Washington, DC 20036
202-508-1100
nsiegel@lskslaw.com

Attorneys for Proposed Amici

i
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE .............................. 1
SUMMARY OF ARGUMENT ................................... 1
I.

THE RELATIONSHIP BETWEEN THE

RIGHT OF PUBLICITY AND THE FIRST
AMENDMENT NEEDS TO BE
ADDRESSED BY THIS COURT ................. 3

II.

THE DECISION BELOW SUBSTATIALLY

INCREASES THE RISK OF PRODUCING
CONTENT PROTECTED BY THE FIRST
AMENDMENT ............................................. 5

III. THE TRANSFORMATIVE USE TEST

FAILS TO SATISFY FIRST AMENDMENT
SCRUTINY................................................... 7
A. The Transformative Use Test
Improperly Equates Copyright Law and
the Right of Publicity ............................... 9
a. The purpose of copyright law is to
facilitate expression .......................... 9
b. Copyright law includes multiple
speech-protective doctrines beyond
transformation .............................. 11
c. Copyrights transformative test cannot
practically be transposed onto the
right of publicity .............................. 13

ii
B. The Transformative Test May More
Appropriately Relate to Merchandising
Cases....................................................... 15
C. Borrowing from Copyright Law Misreads
Zacchini .................................................. 17
D. The Transformative Test is Inherently
Vague ...................................................... 19
IV. THE APPROPRIATE FIRST AMENDMENT
ANALYSIS ................................................. 19
CONCLUSION ........................................................ 24
APPENDIX LIST OF AMICI ................................. 1a

iii
TABLE OF AUTHORITIES
Page(s)
Cases
20th Century Music Corp. v. Aiken,
422 U.S. 151 (1975) ......................................... 9-10
Bi-Rite Enterprises, Inc. v. Button Master,
555 F. Supp. 1188 (S.D.N.Y. 1983) .................... 15
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006) ............................... 12
Brown v. Electronic Arts, Inc.,
724 F.3d 1235 (9th Cir. 2013) ............................ 23
Brown v. Entertainment Merchants Association,
131 S. Ct. 2743 (2011) ...................................... 6, 7
C.B.C. Distribution & Marketing, Inc. v. Major
League Baseball Advanced Media, L.P.,
505 F.3d 818 (8th Cir. 2007) ............................ 4, 9
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1992) .................................11, 12, 13
Cardtoons, L.C. v. Major League Baseball Players
Association,
95 F.3d 959 (10th Cir. 1996) ................................ 9
CBS Interactive Inc. v. National Football League
Players Assn, Inc.,
259 F.R.D. 398 (D. Minn. 2009) ........................... 4

iv
Comedy III Productions, Inc. v. Class
Publications, Inc.,
1996 WL 219636 (S.D.N.Y. May 1, 1996).......... 11
Comedy III Productions, Inc. v. Gary Saderup, Inc.,
25 Cal. 4th 387 (Cal. 2001) ......................... passim
Comedy III Productions, Inc. v. New Line Cinema,
200 F.3d 593 (9th Cir. 2000) .............................. 11
Davis v. Electronic Arts, Inc.,
2012 WL 3860819 (N.D. Cal. Mar. 29, 2012) .... 17
Doe v. TCI Cablevision,
110 S.W.3d 363 (Mo. 2003) .................................. 4
Dryer v. National Football League,
689 F. Supp. 2d 1113 (D. Minn. 2010) ................ 6
ETW Corp. v. Jireh Publishing, Inc.,
332 F.3d 915 (6th Cir. 2003) ............................... 4
Finger v. Omni Publications International, Ltd.,
566 N.E.2d 141 (N.Y. 1990) ............................... 21
Estate of Fuller v. Maxfield & Oberton Holdings,
LLC,
906 F. Supp. 2d 997 (N.D. Cal. 2012) ................ 14
Goldstein v. California,
412 U.S. 546 (1973) ............................................ 18
Harper & Row Publishers, Inc. v. Nation Enterprises,
471 U.S. 539 (1985) .......................................10, 11

v
Hart v. Electronic Arts, Inc.,
717 F.3d 141 (3d Cir. 2013) ........................ passim
Hilton v. Hallmark Cards,
599 F.3d 894 (9th Cir. 2010) ................................ 4
Ibanez v. Florida Department of Business and
Professionall Regulation, Board of Accountancy,
512 U.S. 136 (1994) ............................................ 22
International News Service v. Associated Press,
248 U.S. 215 (1918) ............................................ 18
McFarland v. Miller,
14 F.3d 912 (3d Cir. 1994) ................................. 10
Montana v. San Jose Mercury News, Inc.,
34 Cal. App. 4th 790 (Cal. 1995) ....................... 22
Moore v. Weinstein Co., LLC,
--- F. Appx. ---, 2013 WL 5832375 (6th Cir. Oct.
31, 2013) ............................................................... 7
Namath v. Sports Illustrated,
371 N.Y.S.2d 10 (N.Y. App. Div. 1975) ............. 22
In re NCAA Student-Athlete Name & Likeness
Licensing Litigation,
724 F.3d 1268 (9th Cir. 2013) ..................... passim
Nieves v. Home Box Office, Inc.,
817 N.Y.S.2d 227 (N.Y. App. Div. 2006) ............. 6
No Doubt v. Activision Publishing, Inc.,
122 Cal. Rptr. 3d 397 (Cal. Ct. App. 2011) ..... 4, 5

vi
Palmer v. Schonhorn Enterprises,
232 A.2d 458 (N.J. Super. Ct. Ch. Div. 1967) ..... 4
Parks v. LaFace Records,
329 F.3d 437 (6th Cir. 2003) ................................ 6
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d. 1146 (9th Cir. 2007) ........................... 12
Reno v. American Civil Liberties Union,
521 U.S. 844 (1997) ............................................ 20
Rogers v. Grimaldi,
875 F.2d 994 (2d Cir. 1989) ..........................20, 23
Romantics v. Activision Publishing, Inc.,
574 F. Supp. 2d 758 (E.D. Mich. 2008)................ 4
Seale v. Grammercy Pictures,
949 F. Supp. 331 (E.D. Pa. 1996) ........................ 6
Solano v. Playgirl, Inc.,
292 F.3d 1078 (9th Cir. 2002) .............................. 6
Sony Corp. of America v. Universal City
Studios, Inc.,
464 U.S. 417 (1984) ............................................ 12
Uhlaender v. Henricksen,
316 F. Supp. 1277 (D. Minn. 1970)...................... 4
United States v. Playboy Entertainment Group,
529 U.S. 803 (2000) .............................................. 8

vii
United States v. Stevens,
559 U.S. 460 (2010) ............................................ 23
Winter v. D.C. Comics,
69 P.3d 473 (Cal. 2003) .................................... 3, 8
Winterland Concession Co. v. Sileo,
528 F. Supp. 1201 (N.D. Ill. 1981), affd, 830 F.2d
195 (7th Cir. 1984) ............................................. 15
Zacchini v. Scripps-Howard Broadcasting Co.,
351 N.E.2d 454 (Ohio 1976)............................... 18
Zacchini v. Scripps-Howard Broadcasting Co.,
433 U.S. 562 (1977) ..................................... passim
Statutes
First Amendment ............................................. passim
Other Authorities
D. Zimmerman, Money as a Thumb on the
Constitutional Scale: Weighing Speech Against
Publicity Rights, 50 B.C. L. Rev. 1503, 1520 (Nov.
2009) ................................................................... 18
S. Dogan & M. Lemley, What the Right of Publicity
Can Learn from Trademark Law, 58 Stan. L. Rev.
1161 (2006) ......................................................9, 19
Hilton Kramer, Art: Warhol Show at Jewish
Museum, The New York Times, Sept. 19, 1980
(1980 WLNR 181285)......................................... 19

viii
Restatement (Third) of the Law of Unfair
Competition .............................................16, 21, 23
T. Cotter & I. Dmitrieva, Integrating the Right of
Publicity with First Amendment and Copyright
Preemption Analysis, 33 Colum. J. L. & Arts 165,
202-04 (Winter 2010) ......................................... 19

INTEREST OF AMICI CURIAE

Amici are organizations that create and

disseminate speech to the public, including news,
documentaries, films, television programs, fantasy
sports games, and other content. Pursuant to Sup.
Ct. R. 37.2(a), counsel of record for all parties
received timely notice of the intent to file this brief,
and Respondents did not consent.1
SUMMARY OF ARGUMENT
It is no exaggeration to suggest that there may
be no other issue in contemporary First Amendment
jurisprudence that has been the subject of as much
litigation in lower courts, with as little guidance from
this Court, as the relationship between the right of
publicity and the First Amendment.
Right of
publicity lawsuits have dramatically increased over
the past several decades.
Yet as the NCAAs
proposed petition explains, the lower courts have
produced a chaotic collection of tests that can result
in the same type of expressive work being
constitutionally protected in one jurisdiction, but
actionable in another. This state of affairs has
substantially increased the risks and costs associated
Pursuant to Sup. Ct. R. 37.2 and 37.6, no counsel for a party
authored this brief in whole or in part. No party or their
counsel made any monetary contribution to fund the
preparation or submission of this brief. The amici curiae
provided all funds used for the preparation and submission of
this brief. Counsel of record received timely notice of the intent
to file this brief. Counsel for Petitioner NCAA consents to the
filing of this brief, while Counsel for Respondent Samuel Keller
does not consent. If Electronic Arts position is relevant, it
consents.

2
with publishing expressive works, and has been
significantly exacerbated by the Ninth Circuits
decision that is the subject of the NCAAs Petition
(Keller), as well as the Third Circuits related
decision in Hart v. Electronic Arts, Inc., 717 F.3d 141
(3d Cir. 2013) (Hart).

Keller and Hart are the most significant

decisions to date in the federal circuits to address the
right of publicity, yet their approach sows even more
confusion in the law and wholly fails to satisfy First
Amendment standards. Both circuits maintained
that the transformative use test they applied treats
video games the same as other media like books,
movies, and newspapers. In re NCAA StudentAthlete Name & Likeness Licensing Litigation, 724
F.3d 1268, 1279 n.10 (9th Cir. 2013); Hart, 717 F.3d
at 165. Yet at the same time they predicted the test
would produce a different result when applied to the
latter works. Id. Both propositions cannot coherently
be reconciled, and the results here are at odds with
decades of First Amendment protection for nondefamatory speech, be it fact, fiction, or a
combination of both.
The fundamental error committed by Ninth
Circuit is that its analysis presumes a relationship
between the right of publicity and the law of
copyright that does not exist. As a result, it borrows
the copyright-based transformative use doctrine
that, when applied to the very different issues
presented by most right of publicity disputes,
severely undervalues the First Amendment interests
of content producers.
Rather than considering transformation, the
appropriate way to apply First Amendment scrutiny

3
is to first consider whether an expressive work
effectively renders the original performance of the
plaintiff superfluous, as the Court found in Zacchini
v. Scripps-Howard Broadcasting Co., 433 U.S. 562,
578 (1977) (Zacchini).
Next, courts should
determine whether the defendant used the plaintiffs
identity as a disguised means of promoting a product
or some other expressive work, often referred to as
the Rogers test. Neither concern is presented here.
I.

THE RELATIONSHIP BETWEEN THE

RIGHT OF PUBLICITY AND THE FIRST
AMENDMENT NEEDS TO BE ADDRESSED
BY THIS COURT

The proposed petition describes how, in the

decades since Zacchini, there have been scores of
cases in which lower courts have attempted to
balance the First Amendment and the right of
publicity in the context of lawsuits challenging
newspapers,
books,
magazines,
movies,
documentaries, reality television, comic books, songs,
fantasy sports games, websites, and all manner of
media content. Even more striking is the starkly
inconsistent results that have been produced for the
same type of work.
For example, while the California Supreme
Court applied the transformative use test to dismiss
a claim concerning two comic book characters whose
names (Johnny and Edgar Autumn) evoked the
plaintiff musicians (Johnny and Edgar Winter), see
Winter v. D.C. Comics, 69 P.3d 473, 479 (Cal. 2003),
the Missouri Supreme Court applied the
predominant use test to uphold a $15 million jury
verdict in favor of a hockey player (Tony Twist)
who objected to a minor comic book character with a

4
similar name (Tony Twistelli), causing
the
publisher to file for bankruptcy. Doe v. TCI
Cablevision, 110 S.W.3d 363, 374 (Mo. 2003).
Similarly, although the Ninth Circuit held that a
greeting card might not be transformative because
the basic setting [was] the same as a scene in Paris
Hiltons television show, Hilton v. Hallmark Cards,
599 F.3d 894, 911 (9th Cir. 2010), the Sixth Circuit
found that a painting of Tiger Woods surrounded by
other famous golfers was protected by the First
Amendment, even though the dissent argued that
the image of Woods was nearly identical to a
famous Nike poster. ETW Corp. v. Jireh Publg, Inc.,
332 F.3d 915, 959 (6th Cir. 2003) (Clay, J.,
dissenting). And with respect to fantasy sports
games, early board game versions were deemed to be
actionable, see Uhlaender v. Henricksen, 316 F.
Supp. 1277, 1283 (D. Minn. 1970); Palmer v.
Schonhorn Enters., 232 A.2d 458, 462 (N.J. Super.
Ct. Ch. Div. 1967), modern computer-based games
have been protected, see C.B.C. Distribution &

Mktg., Inc. v. Major League Baseball Advanced

Media, L.P., 505 F.3d 818, 822 (8th Cir. 2007); CBS
Interactive Inc. v. National Football League Players
Assn, Inc., 259 F.R.D. 398, 417 (D. Minn. 2009), and
more recently courts have reached the opposite
result with respect to essentially the same video
game. Compare
Romantics v. Activision Publg,
Inc., 574 F. Supp. 2d 758 (E.D. Mich. 2008) and No
Doubt v. Activision Publg, Inc., 122 Cal. Rptr. 3d
397, 1018 (Cal. Ct. App. 2011).
These incoherent results provide little
guidance to creators of expressive works, especially
those like these amici who distribute their content
nationally and therefore are subject to the often

5
conflicting jurisprudence of multiple jurisdictions.
There can be little doubt that the principal reason for
the current fractured state of the law is the lack of
any guidance from this Court.
II.

THE DECISION BELOW SUBSTANTIALLY

INCREASES THE RISK OF PRODUCING
PRODUCING
CONTENT PROTECTED BY THE FIRST
AMENDMENT

The present state of the law imposes a

substantial practical cost on the creation of
expressive works related to popular figures, a trend
the decision below is certain to exacerbate. Keller
and Hart hold, in effect, that the First Amendment
leaves states free to decide that media related to real
persons must either obtain permission to mention
their name or likeness, or transform them. Yet
numerous works, ranging from newspapers to
biographies to documentaries to movies, strive to
achieve precisely what these decisions found
objectionable exact depictions of [real people]
doing exactly what they do as celebrities, Keller, 724
F.3d at 1276, quoting No Doubt, 122 Cal. Rptr. 3d at
411 and our culture rightly encourages such
expression. Indeed, the most realistic portrayals of
celebrities often receive the most critical acclaim,
like Jamie Foxxs Academy Award-winning portrayal
of the musician Ray Charles in the movie Ray or Ben
Kingsleys performance in Gandhi.
Over the past several decades, lawsuits
against more traditional media such as movies,
books, and magazines have on the whole been less
successful than some challenging other forms of
expressive works, though even there the results have

6
not been consistent. See, e.g., Parks v. LaFace
Records, 329 F.3d 437, 442 (6th Cir. 2003) (song held
to be actionable); Solano v. Playgirl, Inc., 292 F.3d
1078, 1090 (9th Cir. 2002) (same for a magazine
cover); Dryer v. National Football League, 689 F.
Supp. 2d 1113, 1120 (D. Minn. 2010) (same for
documentaries); Seale v. Grammercy Pictures, 949 F.
Supp. 331, 340 (E.D. Pa. 1996) (movie deemed to be
constitutionally protected, but CD containing the
movie soundtrack held to be actionable); Nieves v.
Home Box Office, Inc., 817 N.Y.S.2d 227, 228 (N.Y.
App. Div. 2006) (reality television program). Yet the
lower courts have never provided any persuasive
rationale for implicitly treating media like comic
books or portrait art differently than regular books
or animated movies.
Both Keller and Hart substantially worsen
this state of affairs. Both seem to recognize that
their construction of the transformative test appears
inconsistent with First Amendment principles that
have usually protected non-fiction media such as
books and films. At the same time, both courts
acknowledged that pursuant to Brown v.
Entertainment Merchants Association, 131 S. Ct.
2743, 2729 (2011), video games may not be treated
differently than other forms of expression. Keller,
724 F.3d at 1270; Hart, 717 F.3d at 148. Both
purported to resolve that doctrinal tension by simply
predicting that while these video games are
purportedly not transformative, other media that use
real people would be if the same test were applied.
See, e.g., Keller, 724 F.3d at 1279 n.10 (Certainly
this leaves room for distinguishing between this
casewhere we have emphasized EAs primary
emphasis on reproducing realityand cases

7
involving other kinds of expressive works.); see also
Hart, 717 F.3d at 148. But neither decision provides
any coherent explanation as to how that could be so.
The result is the proverbial worst of all worlds,
because a decision as broadly framed as Keller
ensures that there will continue to be a steady
stream of claims challenging all other forms of
expressive works. Some celebrities who seek a share
of video game profits will likely now sue video game
producers (and perhaps other forms of new media)
and seek to apply what appears to be, de facto, the
disparate treatment for video games applied by the
courts below. Others unhappy with their depiction
in more traditional forms of media will be more
emboldened to sue content creators like these amici
for alleged failure to transform them, arguing that
under Brown books and films cannot constitutionally
have any more license to realistically depict their
subjects than Electronic Arts does. See, e.g., Moore
v. Weinstein Co., LLC, --- F. Appx. ---, 2013 WL
5832375, at *3 (6th Cir. Oct. 31, 2013). Thus, unless
this Court steps in, the risks and costs associated
with producing all reality-based content will
continue to increase.
III.

THE TRANSFORMATIVE USE TEST

FAILS TO SATISFY FIRST AMENDMENT
SCRUTINY

Fundamentally, the conclusion that the First

Amendment
prefers
that
expressive
works
transform real people by depicting them by
fantastical means such as a half-worm, half human
offspring, rather than depict them accurately, has
no plausible basis. Keller, 724 F.3d at 1274, quoting
Winter, 69 P.3d at 476. The logic of these decisions

8
even suggests that content producers should engage
in pointless gamesmanship to alter celebrities
appearances and the context in which they appear,
just enough to pronounce them transformed.
Indeed, that premise is implicit in the very
construction of the claim in Keller.
The plaintiffs definition of the putative class
in Keller pointedly excluded all athletes whose
corresponding avatars in NCAA Football are not
within one inch of the players roster height and . . . .
within 10% of the players roster weight. Keller
Complaint 59. This implies that if by accident or
design Electronic Arts had made its avatars slightly
taller or thinner, the Constitution would be satisfied.
This type of random, content-based distinction
cannot be squared with First Amendment principles.
United States v. Playboy Entertainment Group, 529
U.S. 803, 818 (2000) (esthetic and moral judgments
about art and literature . . . are for the individual to
make, not for the Government to decree.).
The fundamental error committed by Keller
and Hart was to elevate the transformative use test
into an all-purpose means of balancing any right of
publicity claim with the First Amendment. It is no
coincidence that the test was first articulated in the
context of a dispute about the merchandising of a
tangible product (t-shirts) that depicted a standalone portrait. See Comedy III Prods., Inc. v. Gary
Saderup, Inc., 25 Cal. 4th 387 (Cal. 2001). As
discussed further below, the test might arguably
have some relevance if limited to that specific
context. However, the concept of transformation
has no relevance to most right of publicity disputes,

9
including this one, and its application results from
drawing misplaced analogies to copyright law.
A.

The Transformative Use Test

Improperly Equates a Copyright and
the Right of Publicity

The premise of the transformative use test is

that using names and likenesses is analogous to
copying copyrighted expression. See Hart, 717 F.3d
at 158; Comedy III Prods., 25 Cal. 4th at 404.
However, as a number of courts and commentators
have recognized, outside the very limited context of
the type of claim presented in Zacchini this premise
is fundamentally flawed.
See, e.g., C.B.C.
Distribution & Mktg., 505 F.3d at 822; Cardtoons,
L.C. v. Major League Baseball Players Assn, 95 F.3d
959, 976 (10th Cir. 1996) (The justifications for the
right of publicity are not nearly as compelling as
those offered for other forms of intellectual
property); S. Dogan & M. Lemley, What the Right of
Publicity Can Learn from Trademark Law, 58 Stan.
L. Rev. 1161, 1163-64 (2006). As a result, borrowing
legal standards from copyright law substantially
undervalues the First Amendment interests at stake
in right of publicity cases. The most important
distinctions between a copyright and the right of
publicity include:

The purpose of copyrights is to

a.
facilitate expression. The differences between the
two doctrines begin with the fact that copyrights
benefit their holders in order to incentivize the
creation of more speech. Its utility as a speechcreation mechanism has been well-established for
centuries, as recognized by Article I, Section 8 of the
Constitution. See 20th Century Music Corp. v.

10

Aiken, 422 U.S. 151, 156 (1975) (the ultimate aim is,
by this incentive, to stimulate artistic creativity for
the general public good). Where copyright law
penalizes speech by others, it does so only for the
broader purpose of facilitating new expression. See
Harper & Row Publishers, Inc. v. Nation Enters., 471
U.S. 539, 556 (1985). Since it exists in tandem with
the First Amendment, and both function to facilitate
speech, copyright claims do not trigger the same
First Amendment scrutiny applied to other statutory
and common-law causes of action that penalize
speech.
By contrast, the right of publicity has nothing
to do with incentivizing expression. Rather, it exists
to serve individual economic interests and its effect
on speech is entirely censorial. Indeed, it may
reasonably be questioned whether the right of
publicity exists to incentivize anything at all. While
the Third Circuit opined that the goal of
maintaining a right of publicity is to protect the
property interest that an individual gains and enjoys
in his identity through his labor and effort, 717 F.3d
at 151, that is not necessarily so.
Rather, the right of publicity protects [t]he
right to exploit the value of [an individual's]
notoriety or fame, regardless of whether that fame
was achieved by accident or design, or serves any
useful social purpose. McFarland v. Miller, 14 F.3d
912, 923 (3d Cir. 1994); Comedy III, 25 Cal. 4th at
400 (the right of publicity recognizes a protect[a]ble
interest in exploiting the value to be obtained from
merchandising the celebritys image).
Thus, it
rewards fame achieved by winning the lottery to the
same extent as winning a Nobel Prize.

11
Moreover, often copyright, trademark and/or
patent law already substantially reward many
celebrities labor and effort.
For example, the
protection they afforded for decades to the
audiovisual works and the brand created by the
Three Stooges was surely far more important to
rewarding their creative efforts than enjoining a tshirt. See, e.g., Comedy III Prods., Inc. v. New Line
Cinema, 200 F.3d 593 (9th Cir. 2000); Comedy III
Prods., Inc. v. Class Publns, Inc., 1996 WL 219636
(S.D.N.Y. May 1, 1996) (adjudicating claims asserted
by owners of Three Stooges trademarks). There is no
compelling state interest in rewarding personal fame
for its own sake, and at a minimum any interest is
not remotely comparable to the interests of the
Framers and Congress in narrowly targeting a
certain type of expression for the purpose of
incentivizing more original expression.
b.
Copyright law includes multiple
speech-protective doctrines beyond transformation.
Since copyrights reward expression, copyright laws
impact on the speech of others is already carefully
constrained to be consistent with First Amendment
protections. For example, even before applying the
fair use doctrine, the Copyright Act does not protect
ideas, facts, or scenes a faire, and copyright holders
must take affirmative steps such as notice and
registration to fully vindicate their rights. Campbell
v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 n.5
(1992); Harper & Row, 471 U.S. at 560 (noting the
First Amendment protections already embodied in
the
Copyright
Acts
distinction
between
copyrightable expression and uncopyrightable facts
and ideas . . .).

12
Within copyright law, the concept of a
transformative use is therefore just one element of
a broad spectrum of speech-protective doctrines, and
even within the fair use doctrine it is but one
element of a multi-factor test. Campbell, 510 U.S. at
578 (Nor may the four statutory factors be treated
in isolation, one from another). Thus, it is possible
for a use to be fair if it is not transformative. Sony
Corp. of America v. Universal City Studios, Inc., 464
U.S. 417, 433 (1984). It is also possible for a work to
be transformative even if the plaintiffs work is
literally copied, without being physically altered.
The question in copyright law is whether the nature
and purpose of the defendants work operates to
transform what was copied. See, e.g., Perfect 10,
Inc. v. Amazon.com, Inc., 508 F.3d. 1146, 1164-66
(9th Cir. 2007); Bill Graham Archives v. Dorling
Kindersley Ltd., 448 F.3d 605, 609-10 (2d Cir. 2006).
The transformative test thus facilitates the creation
of original expression, consistent with the purpose of
copyright law. Campbell, 510 U.S. at 575.
By contrast, the test articulated by the courts
below does precisely what copyright law proscribes.
It plucks out just one aspect of the fair use doctrine
and applies it in isolation, and further focuses only
on the alteration of the plaintiffs image rather than
the totality of the defendants work. 510 U.S. at 578.
It also does not incorporate any of the broader
speech-related doctrines applied by copyright law. If
there is any analogy to be drawn between a copyright
and the right of publicity, a persons name or
likeness would seem to be most comparable to a noncopyrightable fact and therefore entitled to no legal
protection.

13
In fact, the reason that the California
Supreme Court only borrowed the transformative
use doctrine was because it concluded that all other
fair use factors cannot sensibly apply to the right of
publicity. Comedy III, 25 Cal. 4th at 404. The more
appropriate conclusion was that the two doctrines
are therefore simply not analogous. Instead, by
artificially importing one fragment of copyright
doctrine, defining it more narrowly than copyright
law does, and recognizing nothing analogous to the
fact/idea/expression distinction, Keller and Hart
effectively grant far more legal protection to names
and likenesses than copyright law does to original
expression. That result is inconsistent with any
degree of meaningful First Amendment scrutiny.

Copyrights transformative test

cannot practically be transposed onto the right of
publicity. Transformation is inherently tied to the
c.

function of copyright law.

Copyright protects
original works by limiting the right of others to
physically copy them, and transformation is one
means of qualitatively and quantitatively evaluating
the physical copying of expression. At bottom, it
asks whether the expression, meaning or message
of the copyright holders original expression has been
given a sufficiently new expression, meaning or
message in the alleged infringers work. Campbell,
510 U.S. at 579. And if the answer is yes, then the
allegedly infringing work becomes as equally
protected by copyright as the plaintiffs work,
because the point of the inquiry is to determine
whether the defendants work qualifies as the kind of
original expression that copyright law exists to
incentivize.

14
Thus, in that context it makes sense to inquire
whether an alleged copyright infringer has merely
copied the lyrics or music of a song, or instead
transformed them by giving them sufficiently new
expression, meaning, or message to create a
different song. Id. And if the new song is sufficiently
transformative, it makes sense for the new song to
merit legal protection from someone elses ability to
copy it.
Applying that logic to the right of publicity is a
non-sequitur. A persons name or likeness is not
expression, nor does it have some discernible
meaning or message. Indeed, even the broadest
construction of the right does not purport to establish
that every persons name, face or biographical data
presumptively may not be copied by anyone else.
Otherwise, merely using names in conversation
would be a technical tort.
As a result, trying to equate copying and
transforming a persons name or face, to copying a
measure of music or a stanza of poetry, makes little
sense. There is no meaning or message inherent in
a quarterbacks name, jersey number or passing
completion percentage such that it may be
transformed by giving it a new meaning or
message. Indeed, at least one court has recognized
that the test cannot sensibly be applied to names at
all. Estate of Fuller v. Maxfield & Oberton Holdings,
LLC, 906 F. Supp. 2d 997, 1006 (N.D. Cal. 2012).
Nor does a defendants supposedly transformed
version of anothers face become the defendants face,
thus entitling the defendant to assert publicity rights
over the new face. Yet in copyright law, determining
whether the second, allegedly infringing work merits

15
copyright protection is the whole point of the fair use
inquiry.
It is not surprising, therefore, that the result
of this artificial exercise is the strange proposition
that fictionalized depictions of real people should be
encouraged in expressive media, while more realistic
depictions should not be, a principal that serves no
sound social purpose and has no basis in First
Amendment doctrine. For all these reasons, Kellers
adoption of the transformative use test is an error
of substantial constitutional significance that merits
review by this Court.
B.

The Transformative Test May More

Appropriately Relate to
Merchandising Cases

Rather
than
positing
a
generalized
relationship between two disparate doctrines, the
California Supreme Courts original focus on
transformation might more appropriately have
been limited to the specific facts of Comedy III,
which concerned the mass merchandising of a
product (t-shirts) that displayed copies of still images
of the Three Stooges. The concern raised by the
merchandising of still images on tangible products
is that a celebritys picture is not really used for any
expressive purpose at all, but is merely being sold to
adorn a physical item of merchandise. As a result, it
was a well-established sub-genre of right of publicity
law long before Comedy III. See, e.g., Bi-Rite
Enters., Inc. v. Button Master, 555 F. Supp. 1188,
1196 (S.D.N.Y. 1983); Winterland Concession Co. v.
Sileo, 528 F. Supp. 1201, 1214 (N.D. Ill. 1981), affd,
830 F.2d 195 (7th Cir. 1984).

16
In the merchandising context it may be
relevant to consider whether a still image on a tshirt, button or coffee mug has some independent
artistic value, and considering its transformative
nature might be one means (though not necessarily
the only one) of evaluating that. But when the
product incorporating the plaintiffs image is not an
item of merchandise, but rather is itself an
expressive work such as a newspaper, movie or video
game, the same concerns about merchandising
images on tangible products are not presented.
Electronic Arts is not in any sense merchandising
the physical game disc adorned with a still image of
a player. Rather, it is selling the content that
appears when the disc is electronically accessed.
Notably, the Restatement (Third) of the Law of
Unfair Competition (Restatement) recognizes that
merchandising cases may warrant different results
than those involving integrated expressive works.2
In the context of purely expressive works, the
concept of transformation has no logical connection
to balancing the right of publicity and the First
Amendment. Indeed, it is striking that the Third
Circuit erroneously referred to these video games as
if they were merely products like team jerseys,
2 The sale of merchandise bearing a persons name or likeness
ordinarily constitutes a use of the identity for purposes of trade
under the rule stated in 46. An unauthorized appropriation of
anothers name or likeness for use on posters, buttons, or other
memorabilia is thus ordinarily actionable as an infringement of
the right of publicity. Attempts to defend the sale of such
merchandise on first amendment grounds through analogies to
the marketing of books, magazines, and other traditional media
of communication . . . have typically been rejected. Id. at 47,
cmt. b.

17
rather than expressive works. 717 F.3d at 157-58.
(Appellants career as a college football player
suggests that the target audience for his
merchandise and performances (e.g., his actual
matches) would be sports fans.). See also Davis v.
Electronic Arts, Inc., 2012 WL 3860819, at *5 (N.D.
Cal. Mar. 29, 2012) (characterizing EAs Madden
NFL video games as the digital equivalent of . . . a tshirt.).
C.

Borrowing from Copyright Law

Misreads
Misreads Zacchini

The sweeping analogy some lower courts have

made between the right of publicity and copyrights
results in part from over-reading Zacchini, which
was the starting point for the analysis that produced
the transformative test. Comedy III, 25 Cal. 4th at
404. Zacchini posited a strong relationship between
the ends of copyright law and the right to the
publicity value of his performance claim asserted in
that particular case. Id. at 562. That analogy,
however, has been widely misinterpreted since.
As this Court expressly recognized, Zacchini
was an unusual case quite unlike most right of
publicity cases. See id. at 573 n.10 (the case before
us is more limited than the broad category of
lawsuits that may arise under the heading of
appropriation). In most right of publicity cases,
including Keller and Hart, the plaintiff challenges
the defendants use of his or her persona to allegedly
enhance the value of the defendants expressive
work. The plaintiff in Zacchini, however, was not
really complaining that his name and likeness was
depicted on the news. As this Court noted, he [did]
not merely assert that some general use, such as

18
advertising, was made of his name or likeness. Id.
Rather, he relie[d] on the much narrower claim that
respondent televised an entire act that he ordinarily
gets paid to perform, thus threatening his
livelihood. Id.
Those facts presented a claim that was much
like any claim for copyright infringement involving
the literal reproduction of an entire copyrighted
performance. Indeed, as the case made its way
through the Ohio judiciary, the state courts there
disagreed about whether the claim should even be
denominated one for right of publicity or, instead, a
claim for conversion and common-law copyright
infringement. Zacchini v. Scripps-Howard Broad.
Co., 351 N.E.2d 454, 456 (Ohio 1976). As some
commentators have pointed out, see D. Zimmerman,

Money as a Thumb on the Constitutional Scale:

Weighing Speech Against Publicity Rights, 50 B.C.
L. Rev. 1503, 1520 (Nov. 2009), the case arguably
does not really belong in the right of publicity
category at all. Rather, it is one of a small genre of
cases in which this Court has permitted state laws to
fill gaps in copyright law to protect expressive
activities that are very close to what copyright law is
designed to incentivize. See, e.g., Intl News Service
v. Associated Press, 248 U.S. 215, 236 (1918)
(sustaining a common-law claim for the taking of
hot news); Goldstein v. California, 412 U.S. 546,
579 (1973) (sustaining a state law criminalizing the
pirating of sound recordings).
Presumably the
solution in Zacchini would have been to show a
shorter clip of his performance, not to transform his
image.

19
Thus, while this Courts analogy to copyright
fit the specific claim at issue in Zacchini, the same
comparison does not apply to the vast majority of
right of publicity cases. See, e.g., T. Cotter & I.
Dmitrieva, Integrating the Right of Publicity with

First Amendment and Copyright Preemption

Analysis, 33 Colum. J. L. & Arts 165, 202-04 (Winter
2010); Dogan & Lemley, 58 Stan. L. Rev. at 1186-87.
These video games are not substitutes for watching
football.
D. The Transformative Test is Inherently
Vague
Finally, Keller and Hart illustrate that the
transformative test is so inherently vague that it
provides little guidance to content creators and
invites judges to impose their own subjective
Reno v. American Civil
aesthetic preferences.
Liberties Union, 521 U.S. 844, 871-72 (1997).
Comedy III itself illustrates the point. It held that
images of the Three Stooges were not transformative,
but suggested that the images created by Andy
Warhol would be. 25 Cal. 4th at 408-09. But the art
critics who once viewed Warhol as the quintessential
knock-off artist would vigorously dispute that
conclusion. See, e.g., Hilton Kramer, Art: Warhol
Show at Jewish Museum, The New York Times,
Sept. 19, 1980 (1980 WLNR 181285). The test is
therefore ill-suited to be an effective substitute for
normal First Amendment scrutiny.
IV.

THE APPROPRIATE FIRST AMENDMENT

ANALYSIS

Rather than considering transformation, the

first step in applying First Amendment scrutiny to

20
right of publicity claims should be to ask whether the
facts of a particular case present the same
performance substitution concerns as Zacchini did.
While such cases are likely to be very rare, they
might include some of the hypothetical scenarios
raised during arguments in the court below about
the potential misuse of digital avatars. For example,
if movie studios began producing James Bond movies
using a digital replica of Sean Connery rather than
actually hiring him, that might present a scenario
analogous to Zacchini.
However, the concern raised by that
hypothetical would not be a supposed failure to
transform Mr. Connery.
There are numerous
scenarios in which digitally replicating the actual
performance of a celebrity actor would be perfectly
appropriate, such as to create a biography or
docudrama about the actor in digital form. Rather,
the states interest in recognizing a cause of action
would be that digitally replicating actors for the
specific purpose of avoiding ever using real actors
could deprive them of the opportunity to practice
their profession at all.
That concern is not
implicated here.
The next inquiry should be whether the
defendants work is a disguised means of promoting
either a product or an unrelated expressive work.
While the petition refers to this inquiry as the
Rogers test, it also correctly notes that the
particular test employed in Rogers v. Grimaldi, 875
F.2d 994 (2d Cir. 1989) is just one formulation of a
common principle applied by multiple lower courts,
that expressive
both before and after Rogers:
content should be actionable only where a plaintiffs

21
likeness is genuinely just a ploy to market some
other unrelated product or content. See, e.g., Finger
v. Omni Publns Intl, Ltd., 566 N.E.2d 141, 143 (N.Y.
1990) (expressive works are not a trade use under
New Yorks misappropriation statute unless the
plaintiffs likeness has no real relationship to the
underlying content or the content itself is really an
advertisement in disguise.).
The Restatements treatment of the right of
publicity is particularly noteworthy, because it
strikes a balance that speaks directly to the issues in
this case. The Restatement presumes that use in
entertainment and other creative works is
permitted, unless the name or likeness is used
solely to attract attention to a work that is not
related to the identified person. Restatement 47,
cmt. c.
Moreover, the Restatement disfavors
considering transformation. Id. at 47, cmt. d (In
cases of imitation, the public interest in competition
and in avoiding the monopolization of successful
styles . . . will ordinarily outweigh any adverse effect
on the plaintiff's market.). At the same time, it
recognizes that merchandising cases may present
unique issues.
To illustrate how these principles might apply,
if a restaurant chain opened Sam Keller
Restaurants without Kellers consent, it would liable
for using his name to promote a business.
Alternatively, if a book publisher released Samuel
Kellers Cookbook merely to use Kellers name to
sell recipes that had nothing to do with him, that
might also fail this test.3 But expressive works
3Importantly,

those hypothetical scenarios are distinct from the

use of a persons name or image in advertising for an expressive

22
related to college football, including video games,
would not.
This approach would appropriately balance
the right of publicity and the First Amendment. It
would protect the right to exploit those activities
most traditionally associated with the economic
rewards of celebrity: the practical ability to practice
ones craft (if any) in the first place, and to profit
from fame by lending ones name or image to endorse
other products, services, or even expressive works.
Those opportunities are also far more related to
incentivizing any achievement that might be
associated with gaining celebrity than the possibility
that one might eventually be included in a movie or
video game. Moreover, speech that uses celebrities
for disguised advertising purposes is more likely to
be commercially misleading, and thus less deserving
of First Amendment protection. Ibanez v. Fla. Dept
of Bus. and Profl Regulation, Bd. of Accountancy,
512 U.S. 136, 142 (1994).
Indeed, given that the right of publicity
essentially concerns the protection of personality
brands, if there is any analogy to other intellectual
property rights it would more appropriately be to
trademark law, where the Rogers test is more widely
work that relates to that person. For example, a publisher
marketing a biography of Keller could use his name or image to
promote the book. Lower courts have consistently recognized
that type of promotional use is incidental to publishing
expressive works, and should be constitutionally protected to
the same extent as the underlying work. See. e.g. Montana v.
San Jose Mercury News, Inc., 34 Cal. App. 4th 790, 796 (Cal.
1995); Namath v. Sports Illustrated, 371 N.Y.S.2d 10, 12 (N.Y.
App. Div. 1975).

23
followed by the lower courts, including the Ninth
Circuit which applied it to essentially the same video
game. Brown v. Electronic Arts, Inc., 724 F.3d 1235,
1239 (9th Cir. 2013). The Third Circuit rejected the
analogy to trademark law because it noted that the
right of publicity is broader and, by extension,
protects a greater swath of property interests than
does trademark law, which more narrowly addresses
consumer confusion. Thus, Hart concluded that a
less speech-protective test than the one applied to
trademark claims is warranted. 717 F.3d at 158.
That logic turns the exercise of constitutional
scrutiny on its head. The breadth of a state law
cannot dictate the requisite level of First
Amendment scrutiny; rather the First Amendment
constrains the permissible scope of state law. United
States v. Stevens, 559 U.S. 460, 462-63 (2010). The
state interest in protecting the general public from
consumer confusion is surely far more compelling
than the interest in maximizing the economic
rewards of individual celebrity.
See, e.g.,
Restatement 46, cmt. c (The rationales underlying
recognition of a right of publicity are generally less
compelling than those that justify rights in
trademarks or trade secrets); Rogers, 875 F.2d at
1004. Yet the logic of Keller and Hart is that the
First Amendment guarantees more freedom to
engage in speech that deceives consumers than it
does to create expressive works that relate to
celebrities.

24
CONCLUSION
For the foregoing reasons, the decision below
fundamentally undervalues the First Amendment
rights of content creators like these amici. The
overriding importance of the issues presented thus
extends far beyond the parties in the Ninth Circuit,
and this Court should grant the NCAAs Motion to
Intervene.
Respectfully submitted,
Nathan E. Siegel

Counsel of Record
Shaina Jones Ward
LEVINE SULLIVAN KOCH &
SCHULZ, LLP
1899 L Street NW, Suite 200
Washington, DC 20036
202-508-1100
nsiegel@lskslaw.com

Attorneys for Proposed Amici

APPENDIX

APPENDIX
A&E Television Networks, LLC (AETN) is
comprised of television networks including A&E,
HISTORY, Lifetime, Bio., Military HISTORY,
and Crime & Investigation Network, among others.
The Associated Press (AP) is a not-for-profit
mutual news cooperative. The members of AP are
more than 1,500 newspapers and more than 5,000
television and radio stations throughout the United
States. AP also serves thousands of subscribing
newspapers, news networks and other publishers
and distributors of news worldwide. Founded in
1848, AP is now the largest newsgathering
organization in the world.
Bloomberg L.P. d/b/a Bloomberg News is one of
the worlds largest newsgathering organizations,
comprised of more than 2,500 journalists around the
world in more than 120 bureaus.
Bloomberg
provides business, legal and financial news through
the Bloomberg Professional Service, Bloombergs
website and Bloomberg Television.
Discovery Communications, LLC is a leading,
global nonfiction media company that reaches more
than 1.8 billion cumulative subscribers in 218
countries and territories. Discovery has more than
150 worldwide television networks, including
Discovery Channel, TLC, Animal Planet, Science and
Investigation Discovery, as well as joint venture
networks OWN: Oprah Winfrey Network, The Hub,
and 3net.
Dow Jones & Company, Inc., (Dow Jones) a
global provider of news and business information, is
the publisher of The Wall Street Journal, Barrons,

2a
MarketWatch, Dow Jones Newswires, and other
publications. Dow Jones maintains one of the
worlds largest newsgathering operations, with
nearly 2,000 journalists in more than fifty countries
publishing news in several different languages. Dow
Jones also provides information services, including
Dow Jones Factiva, Dow Jones Risk & Compliance,
and Dow Jones VentureSource. Dow Jones is a News
Corporation Company.
ESPN, Inc. (ESPN) is the largest sports media
company in the world. In the United States, it owns
and operates multiple cable television networks, a
radio network, multiple sports internet sites, a
broadband network, a magazine, and a program
syndication business.
ESPN produces news,
documentaries, and fantasy sports games among
many other forms of content.
The Hearst Corporation is one of the nations
largest diversified media companies. Its major
interests include the following: ownership of 15 daily
and more than 30 weekly newspapers, including the
Houston Chronicle, San Francisco Chronicle and
Albany Times Union; nearly 300 magazines around
the
world,
including
Good
Housekeeping,
Housekeeping, Cosmopolitan and O, The Oprah
Magazine; 29 television stations, which reach a
combined 18% of U.S. viewers; ownership in leading
cable networks, including Lifetime, A&E and ESPN;
business publishing, including a joint venture
interest in Fitch Ratings; and Internet businesses,
television
production,
newspaper
features
distribution and real estate.

3a
National Public Radio, Inc. (NPR) is a District
of Columbia non-profit membership corporation. It
produces and distributes its radio programming
through, and provides trade association services to,
nearly 800 public radio member stations located
throughout the United States and in many U.S.
territories. NPRs award-winning programs include
Morning Edition, and All Things Considered, and
serve a growing broadcast audience of over 23
million Americans weekly. NPR also distributes its
broadcast programming online, in foreign countries,
through satellite, and to U.S. Military installations
via the American Forces Radio and Television
Service.
News Corporation is a global, diversified media
and information services company focused on
creating and distributing authoritative and engaging
content to consumers throughout the world.
The company comprises leading businesses across a
range of media, including: news and information
services, digital real estate services, book publishing,
digital education, and sports programming and payTV distribution.
The Radio Television Digital News Association
(RTDNA), is based in Washington, D.C., and is the
worlds largest professional organization devoted
exclusively to electronic journalism.
RTDNA
represents local and network news directors and
executives, news associates, educators and students
in broadcasting, cable and other electronic media in
over 30 countries.
RTDNA is committed to

4a
encouraging excellence in electronic journalism and
upholding First Amendment freedoms.
Reporters Committee for Freedom of the Press is
an unincorporated association of reporters and
editors which works to defend First Amendment
rights and freedom of information interests of the
news media. The Reporters Committee has provided
representation, guidance and research in First
Amendment litigation since 1970.