The Threat Posed to History & Storytellers

Tuesday, May 15, 2018 - 10:15 am PT
California supreme court seal right of publicity olivia de havilland right of publicity lawsuit volokh conspiracy post on first amendment and depcitions of real people

In this final guest post, "Real People, Real History, Real Problems," on The Volokh Conspiracy about issues raised in my book, I consider the danger that the right of publicity will block or substantially limit depictions of real people. The expansion of the right of publicity's scope over the last few decades, combined with an uncertain and unpredictable First Amendment defense jeopardize our ability to tell true stories, and to include references to real people whether in fiction or nonfiction.  The post considers Olivia de Havilland's recent lawsuit against FX, and her seeking of review by the California Supreme Court of the appellate decision that dismissed her claims on First Amendment grounds. The post also considers other recent lawsuits, such as those brought by athletes and former dictators in the context of video games.

While the post raises the challenge of existing law, in the book I provide guidance on the best ways to address these concerns.

The Book

Privacy Reimagined For A Public World

THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World

This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.

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