A huge range of expressive works—including books, documentaries, televisions shows, and songs—depict real people. Should celebrities have a veto right over speech that happens to be about them? A case currently before the California Court of Appeal raises this question. In this case, actor Olivia de Havilland has sued FX asserting that FX’s television series Feud infringed de Havilland’s right of publicity. The trial court found that de Havilland had a viable claim because FX had attempted to portray her realistically and had benefited financially from that portrayal.

Together with the Wikimedia Foundation and the Organization for Transformative Works, EFF has filed an amicus brief [PDF] in the de Havilland case arguing that the trial court should be overruled. Our brief argues that the First Amendment should shield creative expression like Feud from right of publicity claims. The right of publicity is a cause of action for commercial use of a person’s identity. It makes good sense when applied to prevent companies from, say, falsely claiming that a celebrity endorsed their product. But when it is asserted against creative expression, it can burden First Amendment rights.

Courts have struggled to come up with a consistent and coherent standard for how the First Amendment should limit the right of publicity. California courts have applied a rule called the “transformative use” test that considers whether the work somehow “transforms” the identity or likeness of the celebrity. In Comedy III Productions v. Gary Saderup, the California Supreme Court found that the defendant’s etchings were not protected because they were merely “literal, conventional depictions” of the Three Stooges. In contrast, in Winter v. DC Comics, the same court found comic book depictions of Johnny and Edgar Winter to be protected because they transformatively portrayed the brothers as half-human/half-worm creatures.

The transformative use test is deeply flawed. Plenty of valuable speech, such as biographies or documentaries, involves depicting real people as accurately as possible. Why should these works get less First Amendment protection? If the First Amendment requires turning your subject into a half-human/half-worm creature, then the doctrine has gone very badly wrong.

Catherine Zeta Jones (L) as Olivia de Havilland in Feud

The trial court’s ruling in the de Havilland case, which leaves realistic art about celebrities essentially unprotected, is the logical end-point of the transformative use test. We hope that the drastic result in this case leads California courts to reevaluate free speech limits on the right of publicity. As one judge wrote 30 years ago, no “author should be forced into creating mythological worlds or characters wholly divorced from reality.”

As evidence of the importance of the case, amicus briefs were filed by a number of other companies and organizations. The MPAA and Netflix [PDF], the International Documentary Association [PDF], a group including A&E Television, Reporters Committee for Freedom of the Press, and the First Amendment Coalition [PDF], and a group of law professors [PDF] filed briefs arguing that the First Amendment protects docudramas like Feud. The Screen Actors Guild, on the other hand, filed a brief [PDF] in support of Olivia de Havilland's claim. While it is not unheard of, it is unusual for the MPAA and EFF to be on the same side.