Friday, November 06, 2015

Major "right of publicity" case and "transformation" presented to Supreme Court; Facebook's "real names policy" still under criticism despite some changes

Daniel Nazer of Electronic Frontier Foundation has an important story about the right of publicity, in a case EA v. Davis (or Electronic Arts v. Michael Davis et al), about the incorporation of the identities of some NFL players in a computer game (Madden NFL).  There is another case where a comic book publisher was bankrupted for a minor character with a nickname of an NHL player.   The Ninth Circuit tried to use the “transformation” concept in a right to publicity case, which Electronic Frontier Foundation argues as senseless.  The case is before the Supreme Court, which has been urged to take the case (docket )  Joining EFF in briefs is The Organization for Transformative Works , and the Comic Book Legal Defense Fund.

EFF says, imagine if any celebrity could ban any other party (especially an amateur) from referencing or depicting him or her.  I don’t think I’ve quite encountered this in my own practice.

In a tangentially related issue, EFF, in an article by Nadia Kayyali, argues that Facebook will ultimately need to abolish its “real names” policy, especially in other, less democratic, parts of the world, here.    The article presents embed of letters from the Nameless Coalition (Verge story ) and from Facebook.  It does seem true that in more modern countries, most attacks of stalking are committed by those not using their own names.

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