Full opinion text
OPINION WOLFSON, District Judge: This matter comes before the Court on a motion by Defendant Electronic Arts, Inc. (“Defendant” or “EA”) to dismiss Plaintiff Ryan Hart’s Second Amended Complaint (“Plaintiff’ or “Hart”) pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). The allegations giving rise to Plaintiffs putative class action lawsuit stem from Defendant’s purported misappropriation of the likeness and identity of Plaintiff, a former college football athlete, as well as those similarly situated, for a commercial purpose in connection with four of Defendant’s NCAA Football video games. Defendant contends that Plaintiffs claims under New Jersey law for misappropriation of his likeness, which claims the Court treats as a single right of publicity claim, are barred by the First Amendment. For the reasons set forth below, the Court treats Plaintiffs motion as one for summary judgment. The Court, further agrees that, on balance, on the facts of this case, Defendant’s First Amendment right to free expression outweighs Plaintiffs right of publicity. Accordingly, the Court grants Defendant’s motion for summary judgment. I. BACKGROUND A. NCAA Football Games EA produces a video game series annually called NCAA Football. NCAA Football video games permit users to manipulate the actions of over 100 college football teams and thousands of virtual players in a virtual world with simulated games that “allows users to experience the excitement and challenge of college football.” Def.’s R. 56.1 Stat. at l. The college football teams represented in the game are identifiable by name, as well as through the use of trademarks such as uniform designs and logos. Id. at 21. The virtual players are identified by jersey number and position, although a user can edit game data to give the player a surname, which then appears on the player’s jersey. See Supp. Decl. of Strauser, Ex. E; Second Am. Compl. at 59. Each virtual player’s unique attributes, including personal characteristics (height, weight, athletic ability), accessories (helmet visor, wristband), physical abilities (speed and agility, throwing arm, passing accuracy), and biographical details (place of origin) can also be edited by the user. Def.’s R. 56.1 Statement at 14-15. Additionally, users with an Internet connection can modify entire teams by downloading custom rosters that have been created and uploaded by video game consumers, including a section of EA’s website called Teambuilder. Second Am. Compl. at 59. Some rosters available on these websites seek to replicate actual current and former football team rosters. See id. at 59-61. These video games are interactive, and users “most directly influence the games’ outcome through their own play-calling and their ability to use their hand-held controllers to manipulate the actions of the virtual players.” Id. at 11. For example, each time during gameplay that a user has the option of throwing a football, the user can control the virtual player’s throw distance and accuracy. Id. at 12. Users can choose to play a single game against a game-controlled opponent, a second player connected to the same system, or another person connected to the Internet. Id. at 5. Multi-game options are also available for users. Id. at 18. One of these options is “Dynasty” mode, in which the “user controls a college program for up to thirty seasons, creating his own story of the program’s development.” Id. at 19. Users in “Dynasty” mode are tasked with the “year-round responsibilities of a college coach, such as recruiting virtual high school players out of a random-generated pool of athletes.” Id. B. Plaintiffs First Amended Complaint Plaintiff filed his First Amended Complaint in the Superior Court of New Jersey, Law Division, Somerset County, on October 27, 2009. In that complaint, on behalf of himself and similarly situated athletes, Plaintiff asserted, among other claims, that Defendant had violated his right of publicity based on its use of Plaintiffs likeness as a virtual player on the Rutgers University football team in EA’s 2004, 2005, 2006, and 2009 editions of NCAA Football. First Am. Compl. at 22. On November 24, 2009, EA removed Plaintiffs action to this Court, and then moved to dismiss all counts of the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In connection with its motion to dismiss, EA attached copies of the video games for the Court’s review since the games were referenced in Hart’s initial complaint. In arguing for dismissal of the right of publicity-claim, EA contended that Plaintiffs claim failed as a matter of law under both New Jersey state law and the First Amendment. See Docket. No. 8 at 10-23. Moreover, EA argued that Plaintiff had not stated a claim for right of publicity because the First Amended Complaint did not identify the attributes of Plaintiff that had been incorporated into the NCAA Football games. Id. at 11. Plaintiff submitted a brief in opposition to EA’s motion to dismiss, as well as a Declaration. Both submissions averred misappropriation of specific attributes of Plaintiff into EA’s NCAA Football games. See Court’s Sept. 22, 2010 Opinion, Docket No. 23 (“Court’s Opinion”), 740 F.Supp.2d 658 at 660-62 (D.N.J.2010). In his Declaration, Plaintiff asserted that the disputed games depicted a “virtual” player that had been designed to replicate Plaintiffs physical attributes, as well as his football skills. Id. at 660-62. Further, Plaintiff contended that Defendant had used video footage of him playing in a Rutgers University Football game “in promotion for ... EA’s NCAA game.” Id. at 661. Plaintiff described Defendant’s games as allowing consumers “to simulate the college football playing experience by stepping into the shoes of Rutgers’ QB Ryan Hart, and other college football players, where fans can mimic Plaintiffs style and movements and play against Plaintiffs actual opponents.” Id. at 662 (citation omitted). On September 22, 2010, the Court granted Defendant’s motion to dismiss the First Amended Complaint with prejudice on all counts with the exception of Plaintiffs right of publicity claim, which it dismissed without prejudice. Id. at 668, 671. The Court determined that it could not consider allegations presented by Plaintiff outside of its pleadings on a motion to dismiss, and subsequently determined that because the First Amended Complaint did not contain allegations “as to what aspects of [Plaintiffs] likeness [were] appropriated” by EA, the Court was unable to decide, as a matter of law, whether Plaintiff could state a right of publicity claim under New Jersey law. Id. at 662-63, 664-65. Nonetheless, the Court did undertake an analysis of New Jersey right of publicity law as it related to the facts alleged in Plaintiffs Declaration and opposition brief, and found that the allegations “appear to state a right of publicity claim under New Jersey law.” Id. at 665. Thus, the Court granted Plaintiffs request for an opportunity to amend his Complaint for the second time, and informed EA that the Court would consider its First Amendment defense if Plaintiff filed a Second Amended Complaint. Id. at 664-65. C. Plaintiffs Second Amended Complaint On October 12, 2010, Plaintiff filed his Second Amended Complaint (“Complaint”), in which he alleges that EA violated his right of publicity under New Jersey law by misappropriating and incorporating his identity and likeness for a commercial purpose in connection with EA’s video games. As discussed herein, Plaintiff incorporated the proposed allegations that the Court addressed in its September 22, 2010 Opinion. The Complaint states that Hart’s likeness is found in NCAA Football 200k, NCAA Football 2005, NCAA Football 2006, and NCAA Football 2009, in violation of his right of publicity. See Second Am. Compl. at 32. Thereafter, by way of example of the alleged misappropriation of Hart’s image, the Complaint makes specific factual allegations about the NCAA Football 2006 game. With respect to the NCAA Football 2006 video game, the Complaint alleges that “[t]he attributes of the ‘virtual’ player ... are Plaintiff Ryan Hart’s physical attributes as referenced in the Rutgers University Football Media Guide.” Id. at ¶ 34. In addition, the Complaint alleges, that “in its NCAA Football 2006 video game, Defendant lists the ... ‘virtual’ player quarterback as hailing from Florida ...,” id. at ¶ 35, “standing six (6) feet and two (2) inches tall,” id. at ¶ 36, and “weighting] one hundred ninety-seven (197) pounds (lbs.) ...,” id. at ¶ 37. The Complaint further alleges that the virtual player wears “Hart’s jersey number ... thirteen (13),” id. at ¶ 38, a “left wrist band,” id. at ¶ 39, and “a helmet visor,” id. at ¶ 40. Finally, Hart’s “speed and agility rating ... passing accuracy rating [and] arm strength” all reflect actual footage of Hart during his 2005 college season, according to the Complaint. Id. at ¶¶ 41 — 43. Based on the language of the Complaint, it appears that Hart intends for the allegations related to NCAA Football 2006 to be imputed to NCAA Football 200k and NCAA Football 2005. Attached to the Complaint are copies of screenshots taken from NCAA Football games, and a copy of the 2004 Rutgers University Football Media Guide. See Second Am. Compl., Exh. A-E. The media guide lists biographical facts about Hart, such as his hometown and his physical attributes, such as height and weight. See id. at Exh. A. It, further, describes his football statistics, such as his number of attempts, total offense, and passing yards. Id. The screenshots show images of the virtual player that have been allegedly modeled after Hart. However, Plaintiff did not label the screenshots to link each screenshot to a particular game. Plaintiffs allegation concerning NCAA Football 2009 is similarly unclear on the face of the Complaint. For one, the Complaint does not allege that the virtual character that purportedly mimics Plaintiff is featured in NCAA Football 2009. Instead, Plaintiff alleges that his “image was used in the promotion for ... EA’s NCAA Football game wherein [Plaintiff] was throwing a pass with actual footage from Rutgers University’s Bowl Game against Arizona State University.” Id. at 45. Plaintiff does not expressly identify the video game in dispute, nor any details about the promotion, but based on allegations found in his First Amended Complaint and Defendant’s responses, this allegation appears to be referencing NCAA Football 2009. EA does not dispute that a photo of Plaintiff “throwing a pass appears in a photo montage inside NCAA Football [2009] that can only be seen when a user selects Rutgers as his or her favorite team,” Supp. Decl. of Strauser, Ex. E at 16, Ex. I, but EA contends that it has never used an image of Plaintiff in any advertisement. Def.’s R. 56.1 Statement at 24. Plaintiff avers that these instances of misappropriation of his identity and likeness were “committed with the full intent of increasing the sales and profits for Defendants) since [EA’s] heightened realism in NCAA Football videogames translates directly into increased sales and revenues for EA.” Second Am. Compl. at 48. According to Plaintiff, video game consumers demand that these games “simulate actual college football matches in the most realistic manner possible, including the use of the ‘virtual’ players that are modeled after real-life NCAA Football players such as [Plaintiff].” Id. Further, in regards to the users’ ability to upload and download team rosters with names of real-life players, Plaintiff, while not alleging that EA has itself made this information available, does fault EA for “tak[ing] no courses of action to prevent” users from uploading rosters that use real players’ names without authorization. Id. at 59-63. Plaintiff contends that EA’s “courses of action and inaction” on this issue have allowed users to “effectively heighten[ ] the authenticity and realism of a true NCAA football experience.” Id. at 64-65. D. Instant Motion EA filed the instant motion on November 12, 2010, arguing that the First Amendment to the United States Constitution mandates dismissal of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, summary judgment pursuant to Federal Rule of Civil Procedure 56(c). Plaintiff has opposed this motion, and both parties have filed declarations, affidavits, and exhibits. For the reasons explained herein, the Court elects to treat EA’s motion as one for summary judgment, and finds that summary judgment is appropriate. II. STANDARD OF REVIEW As noted, Defendant has moved for dismissal, or, in the alternative, summary judgment. Defendant opposes consideration under either standard on the basis that discovery is not complete. See Opp. at 8-9. However, Plaintiff fails to identify how discovery would assist the Court in deciding this speech-based tort case. Indeed, discovery is irrelevant to a motion to dismiss under Rule 12(b)(6), which is limited to the complaint allegations. And, for summary judgment purposes, it is Plaintiffs obligation to identify why disposition by way of summary judgment requires discovery. Fed.R.Civ.P. 56(d) (permitting a court to defer considering a motion “if a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition”) (emphasis added). Moreover, the question of whether the First Amendment limits Plaintiffs right of publicity claim is one of law, and courts answer this type of question by independently reviewing the disputed speech at the summary judgment stage. See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1016 (3d Cir.2008) (“[T]he categorization of speech is a question of law that we must resolve through independent review of the program.”); see e.g., id. at 1016 (rejecting First Amendment defense to Lanham Act trademark claims on motion for summary judgment); Hoepker v. Kruger, 200 F.Supp.2d 340, 344, 347-354 (S.D.N.Y.2002) (under summary judgment standard, examining a challenged work of art and dismissing New York statutory right of privacy claim based on First Amendment defense). In that connection, as indicated supra, EA has provided the Court with copies of the video games for the Court’s review. Furthermore, because the Court will further rely on the affidavits and exhibits submitted by the parties, this motion will be treated as one for summary judgment as opposed to a motion to dismiss. “Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law.” Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n. 1 (3d Cir.2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed.R.Civ.P. 56(c). For an issue to be genuine, there must be “a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir.2002). For a fact to be material, it must have the ability to “affect the outcome of the suit under governing law.” Kaucher, 455 F.3d at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Monroe v. Beard, 536 F.3d 198, 206-07 (3d Cir.2008). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to material facts.” Id. at 206, 106 S.Ct. 2505 (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348). Moreover, the non-moving party must present “more than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir.2005). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Additionally, in deciding the merits of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The nonmoving party cannot defeat summary judgment simply by asserting that certain evidence submitted by the moving party is not credible. S.E.C. v. Antar, 44 Fed.Appx. 548, 554 (3d Cir.2002). III. ANALYSIS For the purposes of this motion, Defendant concedes that Plaintiff has stated a prima facie right of publicity claim under New Jersey law. Mot. at 1. Despite this concession, in its moving papers, EA expresses disagreement with statements of New Jersey law made in this Court’s September 22, 2010 Opinion. In that opinion, which granted EA’s motion to dismiss Plaintiffs complaint for failure to sufficiently plead a right of publicity claim under New Jersey law, the Court interpreted New Jersey’s right of publicity law and concluded that Hart’s proposed allegations “appeared] to state a right of publicity claim under New Jersey law.” Court’s Opinion at 665. To the extent that some of EA’s comments suggest that the Court’s interpretation of New Jersey case law is inconsistent with First Amendment principles, EA misreads the September 22nd Opinion. That opinion focused on the scope of New Jersey’s right of publicity claim as expressed by state and federal New Jersey decisional law at that time. The opinion did not address the scope of federal constitutional principles that might affect a New Jersey court’s interpretation of such a claim. Rather, the Court dismissed Hart’s complaint and granted him leave to amend. In so doing, the Court provided an overview of New Jersey’s right of publicity law in ascertaining whether granting leave to amend would be futile. The Court was careful to explain that, in granting Hart leave to amend, “the Court is not holding that Plaintiffs proposed allegations are sufficient as a matter of law. Rather, the Court merely concludes that the sort of allegations Plaintiff proposes suggest that an amendment may not be futile.” Id. at 668. Without a fully articulated amended complaint before it, the Court chose not to define the precise contours of the misappropriation doctrine, including all potential interpretive effects of First Amendment doctrine. Indeed, at the time the Court issued its September 22, 2010 Opinion, the New Jersey Supreme Court had not addressed the misappropriation tort and the First Amendment in one case. A decision by the New Jersey Supreme Court rendered after this Court’s September 22, 2010 opinion, and after the parties’ initial briefing in this case, jointly considers the prima facie misappropriation elements and First Amendment principles. In G.D. v. Kenny, 205 N.J. 275, 15 A.3d 300 (2011), the New Jersey Supreme Court held that the use of a political aide’s criminal history in a campaign flyer, created by a public relations and marketing firm at the request of a political opponent, failed to satisfy the commercial purpose element of the misappropriation tort. Id. at 311. In reaching that conclusion, the Court reasoned: That the ... defendants are in the business of public relations and marketing and prepared the campaign flyers does not make publication of the flyers a publication in the commercial sense. The campaign flyers represented political speech attacking the judgment of a candidate running for public office. This is the type of speech that is at the heart of First Amendment guarantees. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. [Plaintiff] cannot show that the use of his name and image constitutes the tort of misappropriation of one’s name and image for a wrongful purpose. Id. at 311-12 (internal quotation marks and citations omitted). While the G.D. Court did not explicitly define the relationship between the misappropriation tort and the First Amendment, nonetheless, by including First Amendment rationale in its analysis of the plaintiffs prima facie case, the Court construed the tort in a manner to avoid conflict with First Amendment principles. Because of EA’s decision not to challenge the sufficiency of Hart’s right of publicity allegations for the purpose of this motion, the Court will focus solely upon EA’s assertion of the First Amendment defense — rather than upon how a New Jersey court might construe the prima facie elements of the right of publicity. For this reason, the Court finds EA’s inclusion of its disagreement with the Court’s interpretation of New Jersey right of publicity law in several footnotes throughout its brief not only irrelevant to the motion but also a distraction from the issue at hand— the scope of EA’s First Amendment defense. Turning now to the First Amendment defense, the parties dispute whether the First Amendment trumps Plaintiffs claim. In EA’s opening brief, it argued that the First Amendment bars Plaintiffs right of publicity claim because NCAA Football video games constitute protected expressive works. Plaintiff disagreed, in its opposition papers, contending that the NCAA Football games constitute speech made for commercial purposes that is not afforded extensive First Amendment protections. Wbiile the motion was under consideration, the United States Supreme Court decided Brown v. Entertainment Merchants Ass’n, — U.S. -, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). That suit involved a First Amendment challenge to a California statute that “prohibits the sale or rental of ‘violent video games’ to minors, and requires their packaging to be labeled '18.” Id. at 2732. Violation of the statute was punishable by civil fine. Id. In light of Brown’s potential applicability to the instant motion, the Court directed the parties to file supplemental briefs discussing that decision. In ruling that the statute was unconstitutional, the Supreme Court confirmed that video games are entitled to First Amendment protection: Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Id. at 2733. Plaintiff argues, in his supplemental briefing, that Brown is of no help to EA here. In Plaintiffs view, Brown is distinguishable because it involved a content-based statute deserving of strict First Amendment scrutiny whereas a New Jersey right of publicity claim, in contrast, is not content-based. EA agrees, in its supplemental briefs, that the statute in Brown was content-based, but further argues that the right of publicity claim asserted here also operates as a content-based restriction because the claim “turns on the particular content of the defendant’s work and, in particular, whether the defendant used the plaintiffs name, likeness, or other attribute within the defendant’s work.” Def. Supp. Br. at 4. EA, further, focuses on Brown’s confirmation that video games are entitled to full First Amendment protection, and construes Brown as suggesting that video games are not commercial speech entitled to less than full First Amendment protection. A content-based speech restriction is one that regulates “speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Galena v. Leone, 638 F.3d 186, 199 (3d Cir.2011). While EA cites to a law review article to support its contention that a New Jersey right of publicity claim operates as a content-based restriction, see Thomas F. Cotter, et al., Integrating the Right of Publicity with First Amendment and Copyright Preemption Analysis, 33 Colum. J. of Law & the Arts 165 (Winter 2011), that article acknowledges that most courts have not adopted the argument it advocates that the “exercise of state publicity rights is a content-based regulation of speech.” Id. at 169; id. at 167-68 (describing court opinions applying the First Amendment to right of publicity claims as “all over the map” resulting in “confusion reflected in the differing approaches.”). In addition, the article’s thesis turns on whether the speech is commercial or non-commercial; in the authors’ view, commercial speech implicating the right of publicity must be judged under intermediate scrutiny and noncommercial speech under strict scrutiny. Contrary to the article’s proposal, courts apply one of several tests, referred to in the legal discourse as “balancing tests,” that are unique to intellectual property-related cases, to determine whether the First Amendment limits a right of publicity claim in that context. Courts do not tend to apply strict or intermediate scrutiny tests when addressing a First Amendment defense to intellectual property-related claims, such as the right of publicity. Accordingly, this Court’s analysis will focus on the tests actually applied by courts, which tests are explained in more detail infra. As to EA’s latter argument regarding commercial speech, Brown does not explicitly discuss commercial speech. However, another recent decision of the Supreme Court, Sorrell v. IMS Health Inc., — U.S. -, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011), does so. In that case, the Supreme Court made clear that challenges to content-based restrictions on both commercial and noncommercial speech are generally subject to heightened scrutiny. Id. at 2664 (“The First Amendment requires heightened scrutiny whenever the government creates ‘a regulation of speech because of disagreement with the message it conveys.’ ... Commercial speech is no exception.”). Sorrell was not an intellectual-property related case, however. Moreover, Sorrell did not explicitly overrule Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), which recognized a “commonsense distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech,” Central Hudson, 447 U.S. at 562, 100 S.Ct. 2343, and applied intermediate scrutiny to restrictions on commercial speech. And, Sorrell acknowledges that “the government’s legitimate interest in protecting consumers from ‘commercial harms’ explains ‘why commercial speech can be subject to greater governmental regulation than noncommercial speech.’ ” (citation omitted). 131 S.Ct. at 2672. Thus, even after Sorrell, commercial speech may still be entitled to less First Amendment protection than that afforded non-commercial speech, in certain contexts. In any event, whatever First Amendment protection is afforded to commercial speech, NCAA Football is not commercial speech. The Third Circuit’s decision in Facenda, supra, explains that courts are to consider three factors in determining whether speech is commercial or noncommercial: (1) is the speech an advertisement; (2) does the speech refer to a specific product or service; and (3) does the speaker have an economic motivation for the speech. An affirmative answer to all three questions provides ‘strong support’ for the conclusion that the speech is commercial. Id. at 1017 (internal citations and quotation marks omitted). In conducting this inquiry, courts are to make “a commonsense distinction between speech proposing a commercial transaction ... and other varieties of speech.” Id. Applying Facenda here, Plaintiff cannot reasonably contend that the NCAA Football games constitute commercial speech. The speech at issue in Facenda was a video that the court characterized as a “late-night, half-hour-long ‘infomercial’ [for the Madden Football video game, that was] only broadcast eight times in a three-day span immediately before the release of the video game to retail stores — much like an advertisement for an upcoming film.” Id. at 1017. The “infomercial” referred specifically, and solely, to the Madden Football video game. And, the defendant-producer of the game had a financial interest in the sales of the game. Id. at 1017-18. In short, the video “aim[ed] to promote another creative work, the video game.” Id. at 1018. Here, by contrast, the speech is the video game that is being sold. It is not a separate instance of speech that promotes the purchase of another work. Similarly, in Tellado v. Time-Life, 643 F.Supp. 904, 914 (D.N.J.1986), a court in this district found that the First Amendment did not insulate the defendant from a right of publicity claim by a Vietnam veteran whose photograph was used in an advertisement for a book series the defendant produced about the Vietnam War. The Tellado court distinguished between use of the plaintiffs photograph in an advertisement for a book and the hypothetical use of the photograph in the book itself, noting that in the latter case, “defendant’s use clearly would have been protected by the First Amendment, regardless of what type of profit defendant expected to make with its book series.” Id. Further, as courts have long recognized, the First Amendment’s guarantee of free speech extends not only to political and ideological speech, but also to “[e]ntertainment ... motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works.” Tacynec v. City of Philadelphia, 687 F.2d 793, 796 (3d Cir.1982) (First Amendment protects Mummers-type string band performance) (quoting Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981)) (citations omitted) (live entertainment, including non-obscene nude dancing, is protected by First Amendment); accord United States v. Stevens, — U.S. -, 130 S.Ct. 1577, 1585, 176 L.Ed.2d 435 (2010) (videos showing animal cruelty not categorically unprotected by the First Amendment); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977) (“There is no doubt that entertainment, as well as news, enjoys First Amendment protection.”); Kaplan v. California, 413 U.S. 115, 119-120, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973) (“[Pictures, films, paintings, drawings, and engravings ... have First Amendment protection.”). The Supreme Court’s recent ruling in Brown confirms that video games are entitled to the same treatment. 131 S.Ct. at 2733. For these reasons, the Court finds no support for Plaintiffs contention that EA’s NCAA Football video games are not expressive works entitled to the same protections afforded to other expressive works. Plaintiffs only allegation that appears to make a commercial speech argument is that his “image was used in the promotion for ... EA’s NCAA Football game wherein [Plaintiff] was throwing a pass with actual footage from Rutgers University’s Bowl Game against Arizona State University.” Second Am. Compl. at 45. Yet, Plaintiff has produced no evidence that his likeness was ever used in an advertisement for a NCAA Football video game, nor has he suggested that discovery would reveal such evidence. In addition, Defendant denies ever using Plaintiffs image in any advertisement for the games, but has submitted a photograph of Plaintiff “throwing a pass [that] appears in a photo montage inside NCAA Football [2009] that can only be seen when a user selects Rutgers as his or her favorite team.” See Def.’s R. 56.1 Statement at 24; Supp. Deck of Strauser, Ex. E at 16, Ex. I. Because this photograph is part of the video game itself, the commercial transaction has already taken place, and because Plaintiffs photo does not advertise another product or service, the Court finds no basis for concluding that NCAA Football 2009 — or any other NCAA Football video game — is commercial speech. Having concluded that NCAA Football is not commercial speech, the Court now turns to the more thorny question of whether the First Amendment grants EA the right to impinge upon Plaintiffs New Jersey common law right of publicity. The Court begins by discussing the competing interests protected by the right of publicity and the First Amendment, as well as the tests used by courts in balancing those competing interests. Therefore, the Court considers the party’s arguments regarding what test the Court should employ to balance Defendant’s First Amendment rights against Plaintiffs right of publicity — the transformative test or the Rogers test. Finally, the Court performs both balancing tests in light of the parties’ arguments, and concludes that, in this case, the First Amendment serves as a defense to Plaintiffs right of publicity claim under either test. A. Competing Interests of the Right of Publicity and the First Amendment “The area of interrelated torts encompassed by the umbrella term ‘invasion of privacy’ is largely an American contribution to the common law, which is usually said to have its origins in the seminal law review article by Samuel Warren and Louis Brandéis published in 1890.” Rodney A. Smolla, 3 Smolla & Nimmer On Freedom op Speech § 24:2 (2011) (“Smolla”). New Jersey first recognized this common law right in 1907, in a case holding that an individual has the “right to prevent the unauthorized, commercial appropriation of his name or likeness.” See Edison v. Edison Polyform Mfg. Co., 73 N.J.Eq. 136, 67 A. 392 (Ch. Div.1907) cited in Brent A. Olson, Esq., et al., The Right of Publicity, 49 N.J. Prac. § 16:3 n. 9 (2010-2011 ed.) (“Right of Publicity”). Years later, in a 1960 article, Dean William Prosser proposed four distinct privacy torts, including one for the “appropriation, for the defendant’s benefit, of the plaintiffs name or likeness.” Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 334, 235 A.2d 62 (Law Div.1967) (citing W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 117 (5th ed.1984)). See William L. Prosser, Privacy, 48 CaLL.Rev. 383, 389 (1960). Despite its early characterization as a privacy right, by 1967, New Jersey cases treated the tort as a property right. See Canessa, 97 N.J.Super. at 352, 235 A.2d 62 (“We therefore hold that, insofar as plaintiffs’ claim is based on the appropriation of their likeness and name for defendant’s commercial benefit, it is an action for invasion of their ‘property’ rights and not one for ‘injury to the person.’ ”). To be sure, the privacy-based appropriation tort, as envisioned by Prosser, encompassed “both personal and commercial interests caused by an unauthorized exploitation of the plaintiffs identity.” Restatement (Third) of the Law of Unfair Competition § 46, comment b. Throughout the tort’s development, its underlying purpose has been to protect a person’s name, likeness, voice, and biographical data from exploitation by others who seek economic or other benefit from that use. See Bisbee v. John C. Conover Agency, Inc., 186 N.J.Super. 335, 343, 452 A.2d 689 (App.Div.1982); Tellado v. Time-Life Books, Inc., 643 F.Supp. 904, 909-10 (D.N.J.1986). As explained in this Court’s September 22, 2010 Opinion granting EA’s motion to dismiss without prejudice, Underlying this right is the theory that “a celebrity has the right to capitalize on his persona, and the unauthorized use of that persona for commercial gain violates fundamental notions of fairness and deprives the celebrity of some economic value in his persona.” Because celebrity status often translates to economic wealth, the unauthorized use of one’s persona “harms the person both by diluting the value of the name and depriving that ■ individual of compensation.” Hart v. Electronic Arts, Inc., 740 F.Supp.2d 658, 664 (D.N.J.2010) (internal citations omitted). The term “right of publicity” made its first appearance in a federal court opinion in 1953, in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.1953). That case concerned the use of player images on baseball cards, and the opinion described the right of publicity as an economic, as opposed to personal, right. See Marshall Leafier, The Right of Publicity: A Comparative Perspective, 70 Albany L.Rev. 1357, 1360 (2007) (“Publicity ”). The opinion explained: “a man has a right in the publicity value of his photograph ... [and] to grant the exclusive privilege of publishing his picture.... ” Haelan, 202 F.2d at 868. The court did not characterize this right as a property right because “[w]hether it [was] labelled [sic] a ‘property right’ [was] immaterial.” Id. What mattered was that “courts enforce a claim which has pecuniary worth.” Id. Following Haelain, states began to recognize a common law right of publicity and some states even enacted statutes protecting such a right. The right, effectively, became a property right, with some statutes providing that the right might be transferred through will or intestacy. Publicity, supra at 1360. The right of publicity is now recognized by a majority of the states in the United States, though the scope of the right and its transferability varies by state. New Jersey has adopted the Restatement of Torts 2d (1977), thereby incorporating the common law privacy right of appropriation into its state law. Unlike other states, such as California and New York, New Jersey has not enacted a right of publicity statute. Nonetheless, given the similarity between the two doctrines, and that New Jersey treats its misappropriation tort as a property-based rather than privacy-based right, the Third Circuit has used the terms appropriation and right of publicity, interchangeably, to refer to the common law right in New Jersey. See McFarland v. Miller, 14 F.3d 912, 917 (3d Cir.1994) (“In New Jersey, the right of publicity is a property right.”) Examples of New Jersey right of publicity claims upheld by courts include the misappropriation of professional golfers’ names and playing profiles, Palmer v. Schonhorn Enterprises, Inc., 96 N.J.Super. 72, 232 A.2d 458 (Ch.1967), and the use of a photograph of a former Vietnam veteran in a letter advertising a non-fiction book on the Vietnam War, Tellado, 643 F.Supp. at 909-10. Recently, one federal district court in California assumed, without expressly deciding the issue, that a former collegiate football athlete, like Hart, was entitled to pursue a right of publicity claim for EA’s use of his image in NCAA Football. See Keller v. Electronics Arts, Inc., No. C 09-1967, 2010 WL 530108 (N.D.Cal. Feb. 6, 2010). Here, as noted, EA also assumes for the sake of argument that Hart has properly asserted a right of publicity claim. When an author or creator uses another individual’s image in a work, the First Amendment rights of the author or creator are implicated. There are several theories or policies underlying the First Amendment, including the marketplace of ideas, human dignity and self-fulfillment, and democratic self-governance. See Smolla, supra at § 2:3; McCarthy, The Rights of Publicity and Privacy §§ 7:3, 8:16, 8:18 (2d ed.2008). Important here is the human dignity and self-fulfillment theory, which views the right of free expression as central to the dignity and self-realization of the individual author or creator. Smolla, supra at § 2:5. While it is clear that the right of publicity may encroach upon First Amendment rights, there is little clarity as to how to balance the competing interests that each set of rights protects. As one scholar has noted, “[m]ost would acknowledge that the right of publicity needs to be reigned in when it burdens free expression, but no one convenient legal format has been found to set those limits ... The fact is that no judicial consensus has been reached on the contours of the First Amendment vis-a-vis the right of publicity.” Publicity, supra at 1363. Indeed, this body of law can be aptly described as “disordered and incoherent.” Id. For example, “New Jersey recognizes a robust First Amendment constitutional defense to right of publicity claims: if the speech is newsworthy and informative, it may be protected even if it incidentally implicates the right of publicity; if, on the other hand, the speech is primarily commercial, the privilege may be lost.” Right of Publicity, supra at § 16:3. New Jersey, further, recognizes First Amendment protection for entertainment-based, news-related works. As the Third Circuit stated in Jenkins v. Dell Pub. Co., 251 F.2d 447 (3d Cir.1958), cert. denied, 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365 (1958) (en banc), “it is neither feasible nor desirable to make a distinction between news for information and news for entertainment in determining the extent to which a publication is privileged.” Id. at 451 (emphasis added). This Court is not constrained by First Amendment analysis employed by New Jersey courts in this context because just as state courts are not limited by federal court interpretations of the U.S. Constitution, so too is this Court not bound by state court interpretations of the U.S. Constitution. See Surrick v. Killian, 449 F.3d 520, 535 (3d Cir.2006); Kermani v. New York State Bd. of Elections, 487 F.Supp.2d 101, 114 (N.D.N.Y.2006) (“Federal District Courts are not bound to adopt or follow the decisions of State courts when the State courts interpret Federal constitutional principles, even when those principles are applied to state statutes.”) See also Zacchini, 433 U.S. at 567, 97 S.Ct. 2849 (describing First Amendment limitation as a “federal” issue). Moreover, neither New Jersey nor the Third Circuit has explicitly adopted a test that reconciles First Amendment interests with the state right of publicity. Accordingly, I look to decisional law throughout the country that has attempted such reconciliation, as well as secondary sources, for guidance. As noted, many decisions and sources refer to the attempt to reconcile the competing interest of publicity rights and First Amendment rights as a type of “balancing test.” Courts throughout the United States have utilized up to eight “balancing” tests that attempt to weigh the First Amendment rights of an author/creator against the right of publicity. Michael D. Scott, 1 SCOTT ON MULTIMEDIA LAW § 11.49- § 11.52 (3d ed.2006). It is important to note, before describing the various tests, that the Supreme Court in Zacchini the only Supreme Court case addressing a First Amendment defense to the right of publicity, did not engage in a balancing of the competing interests. Zacchini involved a television station’s broadcast, in its news programming, of a stunt performer’s entire cannonball act without the performer’s permission. Ruling in favor of the performer’s publicity right, and against the broadcaster’s reliance on the First Amendment in defense of its airing of the performance, the Zacchini Court reasoned that the First Amendment “does not immunize the media when they broadcast a performer’s entire act without his consent.” Id. at 575, 97 S.Ct. 2849. And, the Court added, “the rationale for [protecting the right of publicity] is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.” Id. at 576, 97 S.Ct. 2849. Since Zacchini was decided in 1977, however, many courts have limited its application to its facts; only when a performer’s entire act is appropriated do courts find it unnecessary to engage in any balancing. See ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 956 (6th Cir.2003) (“Zacchini has been criticized as being very ‘narrowly drawn’ in that it involved the wholesale reproduction of a live ‘entire act’ .... ”); McCarthy, supra at § 8:27. See also Wisconsin Interscholastic Athletic Ass’n v. Gannett Co., Inc., 658 F.3d 614, 624, 2011 WL 3773844, *10 (7th Cir.2011) (reasoning that Zacchini “distinguishes between the media’s First Amendment right to “report on” and “cover” an event and its lack of rights to broadcast an “entire act.””); id. at 625, at *11 (“... Zacchini makes clear [that] the newspapers do not have the underlying right to broadcast an entire event... .”). The two key tests followed by courts today are the transformative test, which is borrowed from the copyright fair use doctrine, and the Rogers test, which is most often applied in Lanham Act trademark actions. Here, Hart advocates for the former and EA for the latter. The United States Supreme Court, the Third Circuit, and the New Jersey Supreme Court have not explicitly endorsed either test. Hart further urges the Court to adopt a third test he describes as “the predominance test.” This test, Hart argues, was utilized by a district court in this district in Estate of Presley v. Russen, 513 F.Supp. 1339, 1356 (D.N.J.1981). That decision, however, predates both the transformative test and the Rogers test. More importantly, the court in Presley was not fashioning a “test,” but applied First Amendment principles to the Elvis impersonation act at issue in that ease, and courts have since limited Presley to its unique facts. See e.g., Romantics v. Activision Publ’g, Inc., 574 F.Supp.2d 758, 766 n. 3 (E.D.Mich. 2008) (distinguishing Presley as involving “merely a copy or imitation” of a performance); Bosley v. Wildwett.com, 310 F.Supp.2d 914, 928 (N.D.Ohio 2004) (relying on Presley where images, in that case, were “mere copies”). Notably, Presley suggested that the copyright fair use doctrine serves as an appropriate analogy for balancing First Amendment interests with right of publicity concerns. In this way, Presley predicted a transformative-style test. Presley, 513 F.Supp. at 1359 (“[While] entertainment ... enjoys First Amendment protection ..., entertainment that is merely a copy or imitation, even if skillfully and accurately carried out, does not really have its own creative component and does not have a significant value as pure entertainment.”). As the Presley court reasoned: Unlike a copier, a parodist or satirist adds his own new and creative touches to the original work, which, in this case, would be the likeness of Elvis Presley as he is performing. The original work basically becomes part of a new and different work which derives its popularity from the added creative elements. The original work, or the likeness of Elvis Presley, is being used in a different manner and for a different purpose. Id. at 1360 n. 21. Accordingly, this Court does not view Presley as espousing an independent test that requires separate analysis, and I will focus my analysis on the transformative test that Presley appears to have foreseen, as well as the Rogers test. In my view, and as explained in more detail herein, the transformative test is more refined than the Rogers test and better balances the competing interests of the right of publicity and the First Amendment. The transformative test’s incorporation of copyright’s fair use doctrine not only reflects the common underlying principles shared by the right of publicity and copyright doctrine, but properly takes into account the extent of a defendant’s use of a plaintiffs image. In this way, the trans-formative test captures the intricacies involved in deciphering whether a challenged work is a “new” work entitled to First Amendment protection or merely a blanket attempt to profit from another’s property without due compensation. That said, I need not explicitly adopt either test because, for the reasons explained herein, EA’s First Amendment defense prevails under both tests. B. Transformative Test The tension between copyright interests and the First Amendment is apparent. The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.... ” Yet the Copyright Act, enacted by Congress under the authority of the U.S. Constitution’s Copyright Clause, grants individuals monopoly-like power to preclude others from expressing copyrighted material. It is this “paradox,” Smolla, supra at § 21:2, that creates tension between the two legal doctrines. The copyright laws grant a copyright owner the right to suppress another person’s freedom of speech, when that person seeks to express copyrighted material. In 2003, the Supreme Court commented on this apparent tension in Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003). In that case, the Supreme Court observed that both the First Amendment and the Copyright Clause were adopted close in time, suggesting that “in the Framer’s view, copyright’s limited monopolies are compatible with free speech principles. Indeed, copyright’s purpose is to promote the creation and publication of free expression.” Id. at 788. Importantly, the Court concluded thereafter, “copyright law contains built-in First Amendment accommodations.” Id. This is because the Copyright Act protects only expression, not ideas, and thereby “strikes a definitional balance between the First Amendment and copyright law by permitting free communication of facts while still protecting an author’s expression.” Id. at 788-89 (citation omitted). “Due to this [idea/expression dichotomy],” the Court continued, “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.” Id. Additionally, the Court noted, the fair use defense codified in the Copyright Act “allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” Id. at 789. Per that defense, “[t]he fair use of a copyrighted work, including such use by reproduction in copies ..., for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Id. Notably, the Court held that there is no need to apply a strict scrutiny test to First Amendment defenses to a copyright infringement claim in light of the aforementioned, built-in First Amendment protections. Id. at 788 (“We reject petitioners’ plea for imposition of uncommonly strict scrutiny on a copyright scheme that incorporates its own speech-protective purposes and safeguards.”). I briefly turn to a description of the idea/expression dichotomy and the fair use doctrine for context. The idea/expression dichotomy serves as one means of alleviating the tension between copyright protection and First Amendment goals. While scholars debate the precise contours of what constitutes an “idea,” see generally Smolla, supra at § 21:5, copyright law protects the “expression of the idea.” Id. This expression represents the “selection and arrangement of ideas, as well as a given specificity in the form of their expression which warrants protection under the law of copyright.” Id.-, see also Melville Nimmer, et ah, Nimmer on Copyright § 13.03[A][1]. The contours of the fair use doctrine are more clear. As codified at 17 U.S.C. § 107, the fair use doctrine is comprised of a list factors for courts to consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Id. Transformative use was first coined, as a phrase, by Judge Pierre N. Leval in a 1990 Harvard Law Review article on the copyright doctrine of fair use. In that article, Judge Leval argued that the fair use doctrine is best effectuated if individuals are permitted to appropriate another’s expression as “raw material” that the individual then “transform[s] in the creation of new information, new aesthetics, new insights and understandings.... ” Pierre N. Leval, Commentary, Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1111 (1990). Just four years following Judge Leval’s suggestion, the Supreme Court employed the transformative use analysis in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). Quoting from Judge Leval’s article, the Court reasoned that “whether and to what extent [a] new work is ‘transformative’ ” informs the Court’s analysis as to the first factor of the fair use analysis, i.e., the purpose and character of the use. Id. at 579, 114 S.Ct. 1164. Post-Campbell, California state court decisions have been credited with shaping the development of the transformative use doctrine in right of publicity cases. The doctrine was adopted by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 106 Cal.Rptr.2d 126, 21 P.3d 797 (2001), in 2001. In that case, the California Supreme Court held that an artist’s sale of lithographed t-shirts of the likenesses of The Three Stooges, which likenesses were reproduced from a charcoal drawing, were undeserving of First Amendment protection because the likenesses were insufficiently transformed. That court recognized that “creative appropriation of celebrity images can be an important avenue of individual expression ... [because the celebrities] symbolize individual aspirations, group identities, and cultural values.” Id. at 397, 106 Cal.Rptr.2d 126, 21 P.3d 797. Nonetheless, the California Supreme Court cautioned, First Amendment rights may not trample without bounds the right of publicity. Viewing the right of publicity as akin to an intellectual property right, designed to protect the “considerable money, time, and energy ... needed to develop one’s prominence in a particular field,” id. at 399, 106 Cal.Rptr.2d 126, 21 P.3d 797 (quoting Lugosi v. Universal Pictures, 25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425 (1979)), the Court concluded that a test incorporating elements of the copyright fair use doctrine most appropriately balanced the competing First Amendment and right of publicity interests. Id. at 404, 106 Cal.Rptr.2d 126, 21 P.3d 797. The California Supreme Court adopted the U.S. Supreme Court’s language in Campbell that “whether and to what extent the new work is ‘transformative’ ” should frame the court’s balancing test inquiry. Id. (quoting Campbell, 510 U.S. at 579, 114 S.Ct. 1164). The Comedy III Court reasoned that the transformative test best protects the competing interests of protecting the celebrity while preserving First Amendment rights. The Court explained: [w]hen artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist. Id. at 405, 106 Cal.Rptr.2d 126, 21 P.3d 797 (emphasis added). A transformative work, in contrast: is not only especially worthy of First Amendment protection, but is also less likely to interfere with the economic interest protected by the right of publicity [because] distortions of the celebrity figures are not, from the celebrity fan’s viewpoint, good substitutes for conventional depictions of the celebrity and therefore do not generally threaten markets for celebrity memorabilia that the right of publicity is designed to protect. Accordingly, First Amendment protection of such works outweighs whatever interest the state may have in enforcing the right of publicity. Id. Ultimately, the California Supreme court concluded, “the right-of-publicity holder continues to enforce the right to monopolize the production of conventional, more or less fungible, images of the celebrity.” Id. In addition, the Comedy III Court provided another (oft-quoted) formulation of the transformative test: Another way of stating the inquiry is whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. Id. at 406, 106 Cal.Rptr.2d 126, 21 P.3d 797. In using the word “expression,” the court meant “something other than the likeness of the celebrity.” Id. And, the inquiry is a qualitative rather than quantitative one, “asking whether the literal and imitative or the creative predominate in the work.” Id. Because the t-shirt lithograph depictions of The Three Stooges were nothing more than portraits that lacked any creative contribution by the artist, the court concluded that the t-shirts were not transformative expressions. Id. Since Comedy III, many courts have adopted and applied the transformative test. See e.g., Hilton v. Hallmark Cards, 580 F.3d 874 (9th Cir.2009); C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Adv. Media, L.P., 505 F.3d 818 (8th Cir.2007); Reyes v. Wyeth Pharmaceuticals, Inc., 603 F.Supp.2d 289 (D.Puerto Rico2009); Romantics v. Activision Publ’g, Inc., 574 F.Supp.2d 758 (E.D.Mich.2008); Bosley v. Wildwett.com, 310 F.Supp.2d 914 (N.D.Ohio 2004); World Wrestling Fed. Entert. Inc. v. Big Dog Holdings, Inc., 280 F.Supp.2d 413 (W.D.Pa.2003); Mine O'Mine, Inc. v. Calmese, No. 2:10-cv-00043, 2011 WL 2728390, *8-9 (D.Nev. Jul. 12, 2011). The transformative test, however, has been subject to some criticism. As explained by one scholar, the test lacks clear, objective guidelines and, thus, “can encourage judges to be art critics or base decisions on external factors like the fame of the artist.” David Tan, Political Recoding of the Contemporary Celebrity and the First Amendment, 2 Harv. J. Sports & Ent. L. 1, 25-26 (2011). Tan further explains: In addition, the cryptic judicial comments that literal depictions like Andy Warhol’s silkscreens of celebrities may also be transformative if they carry a particular social message lend little guidance to how a court may meaningfully determine what constitutes the criteria for transformative use. As shown by recent California decisions, the test is focused on visual transformation which can be overprotective of art and entertainment that contribute little to the discussion of public issues, but underprotective of political speech which may be contextually transformative (because of its recoding) though not visually trans-formative .... In summary, the usefulness of this test appears confined to visual depictions of the plaintiff, and the extent to which the defendant’s use has departed from a realistic rendition of the plaintiffs likeness. Id. at 26. Moreover, Tan notes, the copyright fair use doctrine, from which the transformative test was crafted, “has been crit