OTW Amicus Curiae Briefs

Amicus curiae means “friend-of-the-court”. Amicus curiae briefs are written by an individual or a group that is not directly involved as a party in a legal case, but who has unique expertise or insight to offer to the court.

The OTW’s Legal Advocacy Project often offers their insight through an amicus brief toward cases related to fandom, free speech, and internet policy, as these areas are core to the OTW’s mission to protect and defend the fannish community.

This page is a list of amicus curiae briefs that the OTW has signed onto. If you have any questions about them, please feel free to contact the Legal committee.

2026

Computer & Communications Industry Association v. Paxton

June 2026

As part of our efforts in support of user privacy and security, the OTW filed a brief in with the Wikimedia Foundation, home of Wikipedia, supporting the right to read without disclosing one’s identity.

2025

Curtin v. United Trademark Holdings, Inc.

November 2025

OTW Legal filed an amicus brief arguing that the Trademark Office should consider the interests of the public in decisions that award private ownership over a word or symbol that may be in the public domain. The OTW argued that courts should allow members of the public (not just commercial actors) to challenge trademark registrations, especially when those trademarks involve public domain characters like Rapunzel.

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NetChoice v. Brown and NetChoice v. Fitch

The OTW, along with the Wikimedia Foundation and allies, filed two amicus briefs opposing age verification mandates for websites and for the internet as a whole. Age verification mandates hamper free speech and threaten users’ privacy. The OTW believes strongly in the freedom of the internet and filed these briefs challenging age verification requirements.

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Cox Communications, Inc. v. Sony Music Entertainment

September 2025

The OTW joined allies in filing an amicus brief in the US Supreme Court in the case of Cox Communications v. Sony Music Entertainment. The case deals with when internet service providers can be held responsible for the actions of their users. Our brief discussed the importance of internet access as a practical necessity of daily life, and argued that holding service providers liable for users’ copyright infringement based only on accusations of infringement, rather than actual proof of infringement, would threaten innovation and creativity by creating an incentive for service providers to deny service to creators without requiring evidence or providing due process.

2024

Elliot McGucken v. Valnet, Inc.

May 2024

As with Hunley v. Instagram in 2022, the OTW and allies filed a brief in this case supporting the “server test”. This test is essential to protect the rights of both users and platforms by ensuring that links and embedded content remain protected from copyright liability suits.

2022

Hunley v. Instagram

October 2022

The OTW and allies filed a brief in the case of Hunley v. Instagram supporting the “server test”, which protects the rights of users to link across the internet and embed files and images in web pages, and the rights of platforms to allow linking and embedding without facing potential copyright liability.

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Warhol v. Goldsmith

June 2022

OTW Legal, together with Electronic Frontier Foundation, filed a brief in the US Supreme Court in the case of Warhol v. Goldsmith, arguing that a broad and flexible fair use test is essential and urging the Supreme Court to reaffirm its prior holdings that a transformative use is one that has a different meaning, message, or purpose from the copyrighted work it uses. We used fanvids as examples of when it may be necessary to consider the intended audience for a work when assessing the transformativeness of its use. We also urged the court to place the burden of demonstrating “market harm” on plaintiffs when the use is transformative or non-commercial.

2019

Dr. Seuss v. ComicMix

October 2019

OTW Legal joined allies (including the Electronic Frontier Foundation, Public Knowledge, Prof. Francesca Coppa, and Star Trek authors) to file a brief in the case of Dr. Seuss v. ComicMix. The case involved the book “Oh, The Places You’ll Boldly Go”, a mash-up of Dr. Seuss and Star Trek. The brief discussed the social and artistic value of mashup and remix creation and explained why mashups like the one at issue often constitute fair use of the underlying material.

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Smith v. Drake

July 2019

OTW Legal joined allies to file an amicus brief in the case of Smith v. Drake, which concerned the musician Drake’s use of a sample from a spoken word piece in a rap song. The OTW argued that a use should be considered transformative under the fair use doctrine whenever it uses an underlying work to convey a different meaning or message than the underlying work, and need not provide a direct critique or commentary. The OTW also argued that the transformative use of substantial amounts of source material is legally permissible under the fair use doctrine.

2018

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

January 2018

OTW Legal joined allies from the Electronic Frontier Foundation and Wikimedia Foundation to argue that the US 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.

2017

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

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 US 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.

2016

Star Athletica v. Varsity Brands

July 2016

In this brief filed with the US Supreme Court, the OTW joined allies at Public Knowledge, the International Costumers Guild, and several other groups to argue that copyright law should not be expanded to include garment designs. The case involves a copyright dispute over the design of cheerleading uniforms, but has wider-reaching implications for apparel and industrial design. Some have argued that the case could also have an impact on cosplay and similar fan costuming pursuits, which is why the OTW filed this brief. Regardless of the outcome of the case, the OTW believes that cosplay will still be allowed under the law. Still, as the brief explains, expanded copyright protection would send a message that cosplayers and other costume-making fans are “less welcome at the table of creativity than those who can ante up the price and transaction costs of copyright licenses”, which is inconsistent with the goals of copyright law.

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Stephanie Lenz, v. Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group

September 2016

OTW Legal partnered with Public Knowledge to file an amicus brief supporting Stephanie Lenz’s petition asking the US Supreme Court to review the case. OTW argued that allowing the Ninth Circuit Court of Appeals’ decision to stand would chill freedom of expression on the Internet and invite censorship by allowing copyright owners to send DMCA takedown notices based only on a “subjective good faith belief” that a work does not constitute fair use.

2015

Davis v. Electronic Arts

November 2015

Together with the Electronic Frontier Foundation and the Comic Book Legal Defense Fund, the OTW asked the US Supreme Court to settle a disagreement among US 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.

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Davis v. Electronic Arts

January 2015

The OTW, together with the Electronic Frontier Foundation, filed an amicus brief 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 US 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 rehear 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.

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Stephanie Lenz, v. Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group

October 2015

In this brief, we argued that the US Ninth Circuit Court of Appeals set the standard too low when it required copyright owners sending DMCA takedown notices to have only a “subjective good faith belief” that the work in question infringes copyright and does not constitute fair use. We argued in favor of applying an “objective good faith” standard that would require copyright owners to give meaningful consideration to fair use prior to issuing a takedown notice.

2014

Cindy Lee Garcia v. Google, Inc., YouTubeLLC, et al., and Nakoula Basseley Nakoula

In April 2014, the OTW partnered with Floor64 (the operator of TechDirt) to file a brief asking the court to reconsider its decision with an eye to the fact that, although the decision may create a good factual result in this particular case, it makes terrible law that will harm freedom of expression on the Internet. The case involves the scope and application of the safe harbor provisions of the DMCA and section 230 of the Communications Decency Act, which together prevent content hosts—like YouTube, AO3, and many others—from being liable for what their users post.

Then in November 2014, the court ruled that its previous decision was void, and ordered that the case would be reheard by the entire court—not just a three-judge panel—in December. The OTW filed a new amicus brief in the case, expanding on the arguments we made in our original brief.

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Capitol Records v. Vimeo

July 2014

The OTW partnered with the Center for Democracy and Technology, New Media Rights, the Electronic Frontier Foundation, and Public Knowledge to file a brief which asks a federal appeals court to block record labels’ attempt to thwart federal law in Capitol v. Vimeo—a case that could jeopardize free speech and innovation and the sites that host both. Specifically, the court is addressing what constitutes “red flag” knowledge of infringing material that would require the hosting service to remove the material even without receiving a takedown notice. In the brief, the OTW and its allies argue, among other things, that the standard set by the trial court would place unreasonably high demands on sites that host user-generated content and would chill valuable speech protected by the fair use doctrine.

2013

Fox Broadcasting Company, Inc., Twentieth Century Fox Film Corp., and Fox Television Holdings v. Dish Network L.L.C. and Dish Network Corporation

The OTW, joined by the Electronic Frontier Foundation and Public Knowledge, submitted an amicus brief arguing that “Copyright law does not grant copyright holders like Fox absolute control over the use of their works. The district court followed clear precedent and sound policy when it found that users of Dish’s Ad Hopper do not trespass on Fox’s exclusive rights, that Dish would not likely be liable for its customers’ uses, and that Fox suffered no irreparable harm. This Court should affirm the district court’s order, but clarify that Dish’s intermediate copying is a fair use.”

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Stephanie Lenz, v. Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group

December 2013

The OTW partnered with Public Knowledge and the International Documentary Association (represented by the Stanford Fair Use Project), to file this brief. It explains that unfounded allegations of copyright infringement harm fair use and lawful speech by documenting persistent abuse of DMCA notices. The statute requires the sender of a takedown notice to affirm under penalty of perjury that the use is not “authorized by law”, and punishes misrepresentations. As a result, we argue, the law requires rights holders to form a good-faith belief about whether a use is fair before issuing a notice under the DMCA—and should punish those who take a “shoot first and ask questions later” approach, as Universal did for Ms. Lenz’s video.

2012

Ryan Hart v. Electronic Arts, Inc.

May 2012

The OTW submitted an amicus brief, joined by the Digital Media Law Project, the International Documentary Association, and ten law professors, arguing that Electronic Arts’s (EA) use of college football players’ data/descriptions in a video game 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.

2009

Salinger v. Colting

August 2009

The OTW collaborated with the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, and the Right to Write Fund on an amicus brief in the Salinger/60 Years Later case. The OTW’s Rebecca Tushnet and Casey Fiesler collaborated with lawyers from Stanford’s Center for the Internet and Society and the UC Berkeley School of Law to produce this brief, which supported protecting free speech and the free flow of ideas and information.

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