Publicity Rights could give celebrities a veto over creative works

EFF, the Organization for Transformative Works, and the Comic Book Legal Defense Fund have filed a brief [PDF] in a Supreme Court case over "publicity rights" -- the right of famous people to veto the use of their names and likenesses in other works, like caricatures, documentaries, and biographies.

The Supremes are ruling on EA v. Davis, which turns on NFL players biographical details being incorporated into the list of historical football teams playable in a video game.

Today’s case, EA v. Davis, involves former professional football players whose biographical details (such as position, height, and weight) were incorporated into historical NFL teams available on EA’s Madden NFL computer game. The Ninth Circuit dismissed any free speech concerns and found EA liable because the game failed to “transform” the identity or likeness of the players. EA has asked the Supreme Court to reverse, contending that the Ninth Circuit applied the wrong test, with dangerous consequences for free speech.

We agree. The Ninth Circuit’s rule, which clumsily imports that "transformativeness" principle found in copyright fair use law, makes no sense for right of publicity cases. While EA might not be the most sympathetic advocate for free speech (it is paying current players who appear in the same game), the rule in this case has a potential impact far beyond this particular game, potentially affecting any speech that depicts a real person. All kinds of valuable speech, such as biographies or documentaries, involves depicting real people as accurately as possible. Why should these works be less protected by the First Amendment? If the transformative use test is allowed to stand, it will become harder to create and artistic work based on real people without their permission. The likely result: celebrities of all stripes (actors, politicians, businesspeople) can effectively veto any portrayal they don’t like.

EFF Asks Supreme Court to Apply First Amendment to Speech About Celebrities [Daniel Nazer/EFF]

(Image: Walt Disney Walk of fame, T137, Public Domain)

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