Hart v. Electronic Arts, Inc.

OPINION

In 2009, Appellant Ryan Hart (“Appellant” or “Hart”)1 brought suit against Appellee Electronic Arts, Inc. (“Appellee” or “EA”) for allegedly violating his right of publicity as recognized under New Jersey law. Specifically, Appellant’s claims stemmed from Appellee’s alleged use of his likeness and biographical information in its NCAA Football series of videogames. The District Court granted summary judgment in favor of Appellee on the ground that its use of Appellant’s likeness was protected by the First Amendment. For the reasons set forth below, we will reverse the grant of summary judgment and remand the case back to the District Court for further proceedings.

I. Facts

Hart was a quarterback, player number 13, with the Rutgers University NCAA Men’s Division I Football team for the 2002 through 2005 seasons. As a condition of participating in college-level sports, Hart was required to adhere to the National Collegiate Athletic Association’s (“NCAA”) amateurism rules as set out in Article 12 of the NCAA bylaws. See, e.g., NCAA, 2011-12 NCAA Division I Manual § 12.01.1 (2011) (“Only an amateur student-athlete is eligible for inter-collegiate athletics participation in a particular sport.”). In relevant part, these rules state that a collegiate athlete loses his or her “amateur” status if (1) the athlete “[u]ses his or her athletics skill (directly or indirectly) for pay in any form in that sport,” id. § 12.1.2, or (2) the athlete “[a]ccepts any remuneration or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind,” id. § 12.5.2.1.2 In comporting with these bylaws, Hart purportedly refrained from seizing on various commercial opportunities.3 On the field, Hart excelled. At 6'2", weighing 197 pounds, and typically wearing a visor and armband on his left wrist, Hart amassed an impressive list of achievements as the Scarlet Knights’ starting quarterback. As of this writing, Hart still holds the Scarlet Knights’ records for career attempts, completions, and *146interceptions.4 Hart’s skill brought success to the team and during his senior year the Knights were invited to the Insight Bowl, their first Bowl game since 1978.

Hart’s participation in college football also ensured his inclusion in EA’s successful NCAA Football videogame franchise. EA, founded in 1982, is “one of the world’s leading interactive entertainment software companies,” and “develops, publishes, and distributes interactive software worldwide” for consoles, cell phones, and PCs. (App. at 529-30.) EA’s catalogue includes NCAA Football, the videogame series at issue in the instant case. The first edition of the game was released in 1993 as Bill Walsh College Football. EA subsequently changed the name first to College Football USA (in 1995), and then to the current NCAA Football (in 1997). New editions in the series are released annually, and “allow[] users to experience the excitement and challenge of college football” by interacting with “over 100 virtual teams and thousands of virtual players.” (Id. at 530.)

A typical play session allows users the choice of two teams. “Once a user chooses two college teams to compete against each other, the video game assigns a stadium for the match-up and populates it with players, coaches, referees, mascots, cheerleaders and fans.”5 (Id.) In addition to this “basic single-game format,” EA has introduced a number of additional game modes that allow for “multi-game” play. (Id. at 530-31.) Thus, with the release of NCAA Football 98, EA introduced the “Dynasty Mode,” which allows users to “control[] a college program for up to thirty seasons,” including “year-round responsibilities of a college coach such as recruiting virtual high school players out of a random-generated pool of athletes.” (Id. at 531.) Later, in NCAA Football 2006, EA introduced the “Race for the Heisman” (later renamed “Campus Legend”), which allows users to “control a single [user-made] virtual player from high school through his collegiate career, making his or her own choices regarding practices, academics and social activities.” (Id. at 531-32.)

In no small part, the NCAA Football franchise’s success owes to its focus on realism and detail—from realistic sounds, to game mechanics, to team mascots.6 This focus on realism also ensures that the “over 100 virtual teams” in the game are populated by digital avatars that resemble their real-life counterparts and share their vital and biographical information. Thus, for example, in NCAA Football 2006, Rutgers’ quarterback, player number 13, is 6'2" tall, weighs 197 pounds and resembles Hart. Moreover, while users can change the digital avatar’s appearance and most of the vital statistics (height, weight, throwing distance, etc.), certain details remain immutable: the player’s home state, home town, team, and class year.

Appellant filed suit against EA in state court for, among other things, violation of *147his right of publicity. Appellant’s first amended complaint, filed in October 2009, alleged that Appellee violated his right of publicity by appropriating his likeness for use in the NCAA Football series of video-games. Appellee subsequently removed the action to federal court, and the District Court subsequently dismissed all but one of the claims.7 Thereafter, on October 12, 2010, Appellant filed his second amended complaint, again alleging a claim pursuant to the right of publicity based on Appellee’s purported misappropriation of Appellant’s identity and likeness to enhance the commercial value of NCAA Football. Specifically, Appellant alleges that (1) Appellee replicated his likeness in NCAA Football 2001, 2005, and 2006 (complete with biographical and career statistics)8 and that (2) Appellee used Appellant’s image “in the promotion for [NCAA Football] wherein [Appellant] was throwing a pass with actual footage from Rutgers University’s Bowl Game against Arizona State University.” 9 (App. at 370.)

On November 12, 2010, Appellee filed a motion to dismiss the claim 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). While conceding, for purposes of the motion only, that it had violated Appellant’s right of publicity, Appellee argued that it was entitled to dismissal or summary judgment on First Amendment grounds. Hart v. Elec. Arts, Inc., 808 F.Supp.2d 757, 766 (D.N.J.2011). The motion was accompanied by a Statement of Undisputed Fact and various supporting materials, including declarations. Appellant opposed the motion, arguing that “discovery [was] still in it’s [sic] infancy.” (App. at 9.) The court below rejected this argument, noting that Appellant had “fail[ed] to identify how discovery would assist the Court in deciding this speech-based tort case.” Hart, 808 F.Supp.2d at 764. The District Court then construed the motion as one for summary judgment, citing its intent to “rely on the affidavits and exhibits submitted by the parties,” id., and ruled in favor of Appellee, holding that NCAA Football was entitled to protection under the First Amendment. Appellant timely appealed, arguing that the District Court erred in granting summary judgment prematurely and, in the alternative, erred in holding that NCAA Football was shielded from right of publicity claims by the First Amendment. The matter is now before us for review.

II. Jurisdiction and Standard of Review

We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. Our review of the District Court’s order granting summary judgment is plenary. Azur v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir.2010). “To that end, we are ‘required to apply the same test the district court should have utilized initially.’ ” Chambers ex rel. Chambers v. Sch. *148Dist. of Phila. Bd. of Educ., 587 F.3d 176, 181 (3d Cir.2009) (quoting Oritani Sav. & Loan Ass’n v. Fidelity & Deposit Co. of Md., 989 F.2d 635, 637 (3d Cir.1993)).

Summary judgment is appropriate “where the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Azur, 601 F.3d at 216 (quoting Nicini v. Morra, 212 F.3d 798, 805-06 (3d Cir.2000) (en banc) (citing Fed.R.Civ.P. 56(c))).10 To be material, a fact must have the potential to alter the outcome of the case. See Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir.2006). “Once the moving party points to evidence demonstrating no issue of material fact exists, the non-moving party has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor.” Azur, 601 F.3d at 216. In determining whether summary judgment is warranted “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Chambers ex rel. Chambers, 587 F.3d at 181. “Further, [w]e may affirm the District Court on any grounds supported by the record.” Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir.2009) (en banc) (internal quotation marks omitted).

In connection with Appellant’s request for additional discovery, we review “[wjhether a district court prematurely grant[ed] summary judgment ... for abuse of discretion.” Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir.1989) (citing Dowling v. City of Phila., 855 F.2d 136 (3d Cir.1988)). “To demonstrate an abuse of discretion, [an appellant] must show that the District Court’s decision was arbitrary, fanciful or clearly unreasonable.” Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 542 (3d Cir.2007) (internal quotation marks omitted); see also Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir.1993) (“An abuse of discretion arises when ‘the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” (internal quotation marks omitted)).

III. Discussion

We begin our analysis by noting the self-evident: video games are protected as expressive speech under the First Amendment. Brown v. Entm’t Merchs. Ass’n, -U.S. -, 131 S.Ct. 2729, 2733, 180 L.Ed.2d 708 (2011). As the Supreme Court has noted, “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).” Id. As a result, games enjoy the full force of First Amendment protections. As with other types of expressive conduct, the protection afforded to games can be limited in situations where the right of free expression necessarily conflicts with other protected rights.

The instant case presents one such situation. Here, Appellee concedes, for purposes of the motion and appeal, that it violated Appellant’s right of publicity; in essence, misappropriating his identity for *149commercial exploitation. (Appellant’s Br. at 8, 34; Tr. at 50:12—:16.) However, Appellee contends that the First Amendment shields it from liability for this violation because NCAA Football is a protected work. To resolve the tension between the First Amendment and the right of publicity, we must balance the interests underlying the right to free expression against the interests in protecting the right of publicity. See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 574-75, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977).11

Courts have taken varying approaches in attempting to strike a balance between the competing interests in right of publicity cases, some more appealing than others. In our discussion below, we first consider the nature of the interests we must balance and then analyze the different approaches courts have taken to resolving the tension between the First Amendment and the right of publicity.

A. The Relevant Interests at Issue

Before engaging with the different analytical schemes, we first examine the relevant interests underlying the rights of free expression and publicity.

1. Freedom of Expression

Freedom of expression is paramount in a democratic society, for “[i]t is the function of speech to free men from the bondage of irrational fears.” Whitney v. California, 274 U.S. 357, 376, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandéis, J., concurring). As Justice Louis Brandéis wrote nearly a century ago:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties.... They valued liberty both as an end and as a means. They believed liberty to [be] the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

Id. at 375, 47 S.Ct. 641.

In keeping with Justice Brandéis’ eloquent analysis, the great legal minds of generations past and present have recognized that free speech benefits both the individual and society. The Supreme Court in Procunier v. Martinez noted that the protection of free speech serves the needs “of the human spirit—a spirit that demands self-expression,” adding that “[s]uch expression is an integral part of the development of ideas and a sense of identity.” 416 U.S. 396, 427, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Suppressing such expression, therefore, is tantamount to rejecting “the basic human desire for recognition and [would] affront the individual’s worth and dignity.” Id. Indeed, First Amendment protections have been held applicable to not only political speech, but to “entertainment [including, but certainly not limited to,] motion pictures, programs broadcast *150by radio and television, and live entertainment, such as musical and dramatic works.” Tacynec v. City of Phila., 687 F.2d 793, 796 (3d Cir.1982). Thus, “[t]he breadth of this protection evinces recognition that freedom of expression is not only essential to check tyranny and foster self-government but also intrinsic to individual liberty and dignity and instrumental in society’s search for truth.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 787, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (Brennan, J., dissenting).

The interest in safeguarding the integrity of these protections therefore weighs heavily in any balancing inquiry. Still, instances can and do arise where First Amendment protections yield in the face of competing interests. See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 219-20, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003) (discussing the interplay between copyright law and First Amendment protections); Dun & Bradstreet, Inc., 472 U.S. at 757-61, 105 S.Ct. 2939 (determining that a state may allow recovery of damages in certain defamation cases after balancing “the State’s interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression”). Ultimately, we must determine whether the interest in safeguarding the right of publicity overpowers the interest in safeguarding free expression.

2. The Right of Publicity12

The right of publicity grew out of the right to privacy torts, specifically, from the tort of “invasion of privacy by appropriation.” J. Thomas McCaRthy, The Rights of PUBLICITY and PRIVACY § 1:23 (2d ed. 2012). Thus, when New Jersey first recognized the concept in 1907, its analysis looked to the “so-called right of privacy” and the limits on that concept. Edison v. Edison Polyform Mfg. Co., 73 N.J.Eq. 136, 67 A. 392, 394 (N.J.Ch.1907) (enjoining a company from using the name or likeness of Thomas Edison to promote its products). Additionally, we note that, even at this early stage the New Jersey court recognized that an individual enjoyed a property interest in his or her identity. Id. (“[I]t is difficult to understand why the peculiar cast of one’s features is not ... one’s property, and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorized use of it.”).

However, this early conceptualization had limitations, particularly when it came to protecting the property interests of celebrities and people already in the public eye. See id. (“It is certain that a man in public life may not claim the same immunity from publicity that a private citizen may.”); see also McCarthy, supra, at § 1:25. Faced with this limitation on the legal doctrine, courts began to recognize a “right of publicity,” which protected publicly known persons from the misappropriation of their identities. The first case to describe this protection as a “right of publicity” was Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.1953) (concerning baseball cards in gum packages). There, the Second Circuit held that “in addition to and independent of that right of privacy ..., a man has a right in the publicity value of his photo*151graph.... This right might be called a ‘right of publicity.’ ” Id. at 868. New Jersey courts, which had long recognized a “right of privacy [and] a right of property,” were not far behind in voicing their support for this concept. Ettore v. Philco Television Broad. Corp., 229 F.2d 481, 491 (3d Cir.1956).

In the seminal case of Palmer v. Schonhorn Enters., Inc., the Superior Court of New Jersey noted that

[pjerhaps the basic and underlying theory is that a person has the right to enjoy the fruits of his own industry free from unjustified interference. It is unfair that one should be permitted to commercialize or exploit or capitalize upon another’s name, reputation or accomplishments merely because the owner’s accomplishments have been highly publicized.

96 N.J.Super. 72, 232 A.2d 458, 462 (Ch. Div.1967) (citations omitted) (finding an infringement of property rights where a golfer’s name was used in connection with a golf game); see also Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 235 A.2d 62, 76 (Law Div.1967) (“[T]he reality of a case such as we have here is, in the court’s opinion, simply this: plaintiffs’ names and likenesses belong to them. As such they are property. They are things of value.”).

The current incarnation of the right of publicity in New Jersey is that set forth in the Restatement (Second) of ToRts (1977). See, e.g., Bisbee v. John C. Conover Agency, Inc., 186 N.J.Super. 335, 452 A.2d 689, 690-91 (App.Div.1982) (looking to the Restatement (Second) of Torts for the “four areas of invasion of privacy,” including “appropriation of the other’s name or likeness”); see also G.D. v. Kenny, 205 N.J. 275, 15 A.3d 300, 311 (2011). According to the Restatement, “[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.” Restatement (Seoond) of ToRts § 652 C. The comments also make clear that “the right created by [the rule in § 652 C] is in the nature of a property right.” Id. § 652 C cmt a.13

New Jersey law therefore recognizes that “[t]he right to exploit the value of [an individual’s] notoriety or fame belongs to the individual with whom it is associated,” for an individual’s “name, likeness, and endorsement carry value and an unauthorized use harms the person both by diluting the value of the name and depriving that individual of compensation.” McFarland v. Miller, 14 F.3d 912, 919, 923 (3d Cir.1994). As such, 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. Additionally, as with protections for intellectual property, the right of publicity is designed to encourage further development of this property interest. Accord Zacchini, 433 U.S. at 573, 97 S.Ct. 2849 (“[T]he State’s interest in permitting a ‘right of publicity’ ... is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors.... ”).

Since neither the New Jersey courts nor our own circuit have set out a definitive methodology for balancing the tension be*152tween the First Amendment and the right of publicity, we are presented with a case of first impression. We must therefore consult the approaches of other courts in the first instance.

B. How Courts Balance the Interests

We begin our inquiry by looking at Zacchini v. Scripps-Howard Broadcasting Co., the only Supreme Court case addressing the First Amendment in a right of publicity context. In this case, the Court called for a balancing test to weigh the interest underlying the First Amendment against those underpinning the right of publicity. 433 U.S. at 574-75, 97 S.Ct. 2849. This decision sets the stage for our analysis of three systematized analytical frameworks that have emerged as courts struggle with finding a standardized way for performing this balancing inquiry.

1. Zacchini and the Need for Balance

In Zacchini, an Ohio television news program recorded and subsequently broadcast Mr. Hugo Zacchini’s entire “human cannonball” act from a local fair. The daredevil brought suit alleging a violation of his right of publicity as recognized by Ohio law. Id. at 563-66, 97 S.Ct. 2849. The Ohio courts held that Zacchini’s claim was barred on First Amendment grounds, and the case then came before the Supreme Court.

In setting out the interests at issue in the case, the Supreme Court noted (as we did above) that “the State’s interest in permitting a ‘right of publicity’ is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment.” Id. at 573, 97 S.Ct. 2849. This aspect of the right, the Court noted, was “analogous to the goals of patent and copyright law,” given that they too serve to protect the individual’s ability to “reap the reward of his endeavors.” Id. In Zacchini, the performance was the “product of [Zacchini’s] own talents and energy, the end result of much time, effort and expense.” Id. at 575, 97 S.Ct. 2849. Thus much of its economic value lay “in the right of exclusive control over the publicity given to his performance.” Id. Indeed, while the Court noted that “[a]n entertainer such as petitioner usually has no objection to the widespread publication of his act as long as [he] gets the commercial benefit of such publication,” id. at 573, 97 S.Ct. 2849, the claim at issue in the Zacchini concerned “the strongest case for a ‘right of publicity,’ ” because it did not involve the “appropriation of an entertainer’s reputation to enhance the attractiveness of a commercial product,” but instead involved “the appropriation of the very activity by which the entertainer acquired his reputation in the first place,” id. at 576, 97 S.Ct. 2849.

Ultimately, the Court ruled in favor of the human cannonball, and held that

[w]herever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent. The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner.

Id. at 574-75, 97 S.Ct. 2849. Thus, while the Court did not itself engage in an explicit balancing inquiry, it did suggest that the respective interests in a case should be balanced against each other.

In the wake of Zacchini, courts began applying a balancing inquiry to resolve eases where a right of publicity claim col*153lided with First Amendment protections. While early cases approached the analysis from an ad hoc perspective, see, e.g., Guglielmi v. Spelling-Goldberg Prods., 25 Cal.3d 860, 160 Cal.Rptr. 352, 603 P.2d 454 (1979) (en banc), courts eventually began developing standardized balancing frameworks. Consequently, we now turn our attention to more standardized balancing tests to see whether any of them offer a particularly compelling methodology for resolving the case at hand and similar disputes.14

2. The Modern Balancing Tests

Following Zacchini, courts began developing more systematized balancing tests for resolving conflicts between the right of publicity and the First Amendment. Of these, three tests are of particular note: the commercial-interest-based Predominant Use Test, the trademark-based Rogers Test, and the copyright-based Trans-formative Use Test. The Rogers and Transformative Use tests are the most well-established, while the Predominant Use Test is addressed below only because Appellant argues in favor of its adoption. We consider each test in turn, looking at its origins, scope of application, and possible limitations. For the reasons discussed below, we adopt the Transformative Use Test as being the most appropriate balancing test to be applied here.

a. Predominant Use Test

Appellant urges us to adopt the Predominant Use Test, which first appeared in Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo.2003) (en banc), a case that considered a hockey player’s right of publicity claim against a comic book publishing company. In TCI, Anthony “Tony” Twist, a hockey player, brought suit against a number of individuals and entities involved in producing and publishing the Spawn comic book series after the introduction of a villainous character named Anthony “Tony Twist” Twistelli.

In balancing Twist’s property interests in his own name and identity against the First Amendment interests of the comic book creators, the TCI court rejected both the Transformative Use and Rogers tests, noting that they gave “too little consideration to the fact that many uses of a person’s name and identity have both expressive and commercial components.” Id. at 374. The Supreme Court of Missouri considered both tests to be too rigid, not*154ing that they operated “to preclude a cause of action whenever the use of the name and identity is in any way expressive, regardless of its commercial exploitation.” Id. The court instead applied what it called a “sort of predominant use test”:

If a product is being sold that predominantly exploits the commercial value of an individual’s identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some ‘expressive’ content in it that might qualify as ‘speech’ in other circumstances. If, on the other hand, the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.

Id. (quoting Mark S. Lee, Agents of Chaos: Judicial Confusion in Defining the Right of Publicity-Free Speech Interface, 23 Loy. L.A. Ent. L. Rev. 471, 500 (2003)). The TCI court considered this to be a “more balanced balancing test [particularly for] cases where speech is both expressive and commercial.” Id. After applying the test, the court ruled for Twist, holding that “the metaphorical reference to Twist, though a literary device, has very little literary value compared to its commercial value.” Id.

We decline Appellant’s invitation to adopt this test. By our reading, the Predominant Use Test is subjective at best, arbitrary at worst, and in either case calls upon judges to act as both impartial jurists and discerning art critics. These two roles cannot co-exist. Indeed, Appellant suggests that pursuant to this test we must evaluate “what value [Appellee is] adding to the First Amendment expressiveness [of NCAA Football ] by appropriating the commercially valuable likeness?” (Tr. at 14:15—:1S.) Since “[t]he game would have the exact same level of First Amendment expressiveness if [Appellee] didn’t appropriate Mr. Hart’s likeness,” Appellant urges us to find that NCAA Football fails the Predominant Use Test and therefore is not shielded by the First Amendment. (Tr. at 7:10-12.) Such reasoning, however, leads down a dangerous and rightly-shunned road: adopting Appellant’s suggested analysis would be tantamount to admitting that it is proper for courts to analyze select elements of a work to determine how much they contribute to the entire work’s expressiveness. Moreover, as a necessary (and insidious) consequence, the Appellant’s approach would suppose that there exists a broad range of seemingly expressive speech that has no First Amendment value.15

Appellee rightly argues that the Predominant Use Test is antithetical to our First Amendment precedent, (Tr. at 25:2-:9), and we likewise reject the Test.16 We instead turn our attention to the Rogers Test, which was proposed by Appellee and which draws its inspiration from trademark law.

b. The Rogers Test

The Rogers Test looks to the relationship between the celebrity image and the work as a whole.17 As the following dis*155cussion demonstrates, however, adopting this test would potentially immunize a broad swath of tortious activity. We therefore reject the Rogers Test as inappo