An interesting article in today's New York Times addresses the tension between freedom of speech and an individual's desire to control commercial uses of their identity. The article can be found here.
The article focuses on a lawsuit brought by Sam Keller, a former quarterback at Arizona State, who claims that a video game company used images of him and other NCAA athletes without permission or compensation. The games at issue do not include the athlete's name, but allegedly render the player identifiable through characteristics like number, uniform, position, and playing style.
The article notes that the United States Supreme Court has not opined on these issues since 1977, when it ruled that the First Amendment did not bar a suit brought by human cannonball Hugo Zacchini over a television station's broadcast of his entire fifteen second act.
What the article does not address, however, is the role that First Amendment protection for parody might play in resolving the question. In cases like Cardtoons v. Major League Baseball Players Association, courts have recognized that athletes are public figures and that making fun of them is yet another national passtime--one the First Amendment protects.
So, as a practical matter, this issue may disappear if video game manufacturers simply shift strategies. Perhaps Tim Tebow, the devoutly religious Florida Gator who wore number 15, becomes Tim Bowtie, the Satan worshiper who wears number 666.
If a victory in Keller's case drives video game manufacturers in this direction it may be hard to think of it as much of a victory.