Imagine if public figures were given veto power over creative works that depicted or referenced them. Every biographer would need permission from his or her subject. Every documentary film producer would need to run the film by the people featured in it. Every cartoonist would need permission for every caricature. Our ability to make art that is inspired by, or comments on, the real world would be sharply limited.
Unfortunately, recent decades have seen an expansion of a cause of action, known as the right of publicity, that increasingly gives celebrities the ability to do just that. Today, EFF, together with the Organization for Transformative Works and the Comic Book Legal Defense Fund, filed a brief [PDF] asking the Supreme Court to reverse this trend, and make sure that our robust First Amendment protection for speech extends to speech about famous people.
The right of publicity is an offshoot of state privacy law that gives a person the right to limit the public use of her name, likeness, or identity for commercial purposes. While a limited version of this right makes sense (for example, allowing people to prevent companies from using their name in an ad without permission), it has expanded well beyond its original boundaries. Today, it covers just about any speech that “evokes” a person’s identity. Celebrities have brought right of publicity cases against movies, songs, magazine features, and computer games. In one notable case, a comic book publisher was driven into bankruptcy thanks to a minor character with a nickname inspired by a professional hockey player.
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.
Other amicus briefs urging the Supreme Court to take this case were filed today by 31 constitutional law professors [PDF], the Entertainment Software Alliance [PDF], and the Thomas Jefferson Center for the Protection of Free Expression [PDF]. We hope the Court heeds this advice and applies robust free speech protection to speech about public figures.