An alliance of free speech advocates has filed an amicus brief to ask the Ninth Circuit U.S. Court of Appeals to reconsider its decision in Davis v. Electronic Arts favoring the right of publicity over free speech. The alliance considers it unwarranted to extend privacy rights to include speech that “evokes” a person’s identity. The recent decision by a three-justice panel of the Ninth Circuit would make it difficult to make any movie or documentary based on real people, for instance, politicians, actors and businesspeople, without their permission. (Electronic Frontier Foundation, February 3, 2015, by Daniel Nazer)
The brief points out that the Davis decision threatens large classes of works including biographies, historical fiction and films based on real people and events: “One need only glance at this year’s Academy Award nominees to see the vast array of real-life stories with depictions of real people, from Martin Luther King Jr., Coretta Scott King, and J. Edgar Hoover in Selma, to Stephen Hawking in The Theory of Everything, to Alan Turing in The Imitation Game. And many other purely fictional works nonetheless incorporate real people as characters, or at least use their names; consider Forrest Gump, Midnight in Paris, Ginger and Fred, E.L. Doctorow’s novel Ragtime, Steve Martin’s play Picasso at the Lapin Agile,and many more.” (The Washington Post The Volokh Conspiracy, February 2, 2015, by Eugene Volokh)