[Fury]

The Ninth Circuit Court of Appeals put its thumb on the scales today, issuing a terrible decision holding that a celebrity’s right of publicity is more important than any First Amendment right to depict real people in a video game. This ruling follows closely on the heels of a similar decision from the Third Circuit and threatens a wide range of speech—such as biographies and documentaries—which seeks to realistically depict famous people.

The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.

However, to make matters all that much more confusing...

Adding to the strangeness of today’s ruling, the same three-judge panel simultaneously issued an excellent free speech decision in Brown v. Electronic Arts. That case involved nearly identical facts—footballer Jim Brown challenged EA’s use of his likeness in the game Madden NFL—but the claim was brought under the Lanham Act (the federal statute relating to trademarks). In Lanham Act cases, the Ninth Circuit applies the Rogers test, which asks whether the use of a trademark (or likeness) in an expressive work has any artistic relevance. Since EA’s use of Brown’s likeness was relevant to its football game, it was protected by the First Amendment. Unlike the vague transformation test, the Rogers test is highly protective of free expression. It merely requires that the artistic relevance be above zero and thus limits the need for the court to engage in artistic weighing. It should also be applied in right of publicity cases.

Today’s twin rulings create a bizarro world where the First Amendment (properly) provides robust protection for the use of trademarks in expressive works but offers almost no protection in the face of the amorphous state-law right of publicity—a right that is rooted in privacy protections but, in its current incarnation, only makes sense as a method of, like trademark, reducing consumer confusion. What is worse, in recent years, the right of publicity has expanded to apply to just about anything that “evokes” a person’s identity, such as a phrase associated with a celebrity (like “Here’s Johnny,”) or even a robot dressed like a celebrity. Left unchecked, publicity rights would give celebrities the right to censor a staggering range of expression. We hope that the Ninth Circuit (sitting en banc) or the Supreme Court steps in to restore robust protection for free speech.

Source


Personally, I'm not sure what to think. Regardless of whether my person would be of any importance in any field such as politics, sports or science, I wouldn't like it if my likeness were to be used without my approval. I like to think that I am in control of my person. If my person or likeness would be depicted in fiction, regardless of how realistic it is, in a sense I wouldn't be in control of my person any more. I also don't like how this focuses so much on celebrities and their rights of publicity. Shouldn't Average Joes and Janes be protected just as well?

And then there's the Free Speech©, people always get their jimmies rustled when it looks like it's getting the short stick. But really, how many actually choose it over protecting themselves?


Makes me wonder if Finnish courts have ever made a ruling on similar case or what they would decide if it ever comes up.

[Luis Dias]

Well if the "average Joes and Janes" were to be protected, then anyone would be able to sue videogame companies because they have NPCs that look "just like them". The odds of such are mostly 100%. The whole wider problem is much more insiduous, I hate when I see barriers to creativity being built up as an increasingly complex web of legal traps that will inevitably and increasingly encompass every single artistic creation ever produced.

[Dragon]

As long as the right to censorship is not extended to the celebrities' families, then historical figures (being, in most cases, dead) should be OK. While I agree that there should be some kind of protection provided to individuals regarding the use of their image, but it should be implemented in a way that presents the least opportunity to abuse it. So, it should be specifically tied to the person being depicted, or their legal guardian in case of children. And of course, after death, the permission would be granted automatically (with regards to children that died before their guardian did, the legal guardian should have a say, though).

[NGTM-1R]

As long as the right to censorship is not extended to the celebrities' families, then historical figures (being, in most cases, dead) should be OK.

IIRC it might be; they had to secure the consent of Tupac's family before his posthumous performance at Coachella.

[Dragon]

Well, in that case, should something like that be implemented in Poland, I could, claim rights to censor "Krzyżacy" ("Teutonic Knights"), a famous epic movie about Battle of Grunwald (a very important moment in Polish history), arguing that one of my ancestors was depicted there. I can trace my lineage that far back, and I don't think anybody would be able to question my assertion that one of the Polish knights depicted in the background isn't that Sir DeVille from whom my mother's family is descended.

Of course, this is a ridiculous example, but I think it illustrates why there needs to be some kind of provision against applying this law to historical figures. Most famous historical figures have still living relatives, afterall.

[FlamingCobra]

contriboot'n!
(GTA5)

[deathfun]

I maintain that reference is important and public figures make it just that much easier to obtain it

[Mr. Vega]

Another incident in the millenia-long battle between the producer and the tollbooth collector, and the tollbooth collector has been on one hell of an offensive.