Amicus Curiae briefs in cases regarding U.S. right of publicity laws

FX Networks, LLC AND Pacific 2.1 Entertainment Group, Inc. v. Olivia De Havilland, DBE

OTW Legal joined allies from the Electronic Frontier Foundation and Wikimedia Foundation to argue that the U.S. First Amendment protects the right to make expressive works about real people, and that right of publicity laws shouldn’t be used to prevent people from making docudramas and other fictionalized historical and biographical works.

Facebook, Inc., and Does One through Fifth, inclusive, v. Jason Cross aka Mikel Knight; 1203 Entertainment, LLC, and MDRST Marketing/Promotions, LLC

In January 2017, the OTW joined several allies in an amicus brief in the case of Cross v. Facebook. The brief makes two arguments against overreaching right-of-publicity laws. The first argument is that people shouldn’t be able to use right of publicity laws to prevent noncommercial social media communications about them. The second is that Section 230 of the U.S. Communications Decency Act, which provides a “safe harbor” for sites that host user content (like fan sites and social media sites), protects such sites from liability for user content that violates rights of publicity.

Davis v. Electronic Arts

Together with the Electronic Frontier Foundation and the Comic Book Legal Defense Fund, the OTW asked the U.S. Supreme court to settle a disagreement among U.S. courts about when the First Amendment protects people’s free speech rights to use someone’s name, likeness, or identity without violating their rights of publicity. This is part of the OTW’s continuing effort to ensure that First Amendment protection for speech extends to speech about famous people.

OTW Legal, together with the Electronic Frontier Foundation (EFF), filed an amicus brief seeking 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 the 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, to the detriment of creators wishing 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.

Ryan Hart vs. Electronic Arts, Inc.

The Organization for Transformative Works submitted an amicus brief, joined by the Digital Media Law Project and the International Documentary Association and ten law professors, arguing that EA’s use in a video game of college football players’ data/descriptions is covered by the First Amendment. EA and the public have a strong First Amendment interest in being able to incorporate factual information – like a player’s height, weight, jersey number, and team – into creative works.