OTW Reports On Davis v. Electronic Arts & Asks for Fans’ Help

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OTW Legal, together with the Electronic Frontier Foundation (EFF), filed an amicus brief (available in PDF) on Friday seeking a rehearing in the case of Davis v. Electronic Arts.

The case concerns the relationship between the First Amendment, which guarantees the right to free expression, and states’ right of publicity laws, which limit how people’s names, likenesses, and personas can be used. The brief argued that the U.S. Ninth Circuit should rehear the case because its decision in the case struck the wrong balance, favoring rights of publicity in a way that harms creators who want to make expressive works about real people.

Under the existing decision, the brief argued, “an artist creating a work about a real person has little idea how a court might evaluate liability for the use of that person’s likeness, particularly if she cannot be certain which jurisdiction’s rules might govern the analysis.” The brief asked that the court re-hear the case in order to protect artists who want to create realistic portrayals of real people, and to shield creative expression from overreaching publicity rights.

We will keep fans informed on future developments in this case.

Talk Back to the U.S. Copyright Office

In the meantime, we could use help from fans!

A number of organizations have created a public comment form to make it easier for users to join the discussion about U.S. Digital Millennium Copyright Act (DMCA) reform. As stated on the page: “For an exemption to be granted, we need to demonstrate an ‘overwhelming market need.’ That’s where you come in: Let’s show them what thousands of people demanding their rights looks like.”

The OTW has petitioned for a renewal of a DMCA exemption for fan video makers. We would like fans to add their voices and tell the Copyright Office that they have a right to remix multimedia.

The key exemption for the OTW is the third item on the comment list: “Remix your media (videos)”. We’re asking that fans write in about their need for high quality source from DVDs or Blu-Rays; sources that are only available on Blu-Ray; or sources from places like iTunes or Amazon when that’s necessary to make a timely vid to participate in an ongoing fannish conversation.

Comments are due by February 6, and will be published on the Copyright Office website.