Explain the transformative use test and how it is applied when First Amendment protection competes against a right of publicity.

Question

What will be an ideal response?

Answer 1

Some courts have used a transformative use test to decide whether a challenged work has First Amendment protection against a right of publicity suit. These courts ask whether the new work only copies the original – an artist makes an exact drawing of a celebrity and sells copies of that picture—or instead transforms the original by adding new creative elements. If an artist drawing a caricature exaggerates a person’s facial or body features, perhaps for comic effect, the caricature transforms the original—that is, changes the person’s actual physical features. The First Amendment protects caricatures that have enough originality. The Court proposed the transformative use test to distinguish protected artistic expression about celebrities from expression that encroaches on a personality’s right of publicity. The First Amendment protects a work that adds enough new elements to the original to transform it. Changing the original by giving it a new meaning or a different message justifies First Amendment protection. Transformative works may be satires, news reports, or works of fiction or social criticism, the Court said.