Hello All,

Last month, the Wikimedia Foundation joined the Electronic Frontier Foundation https://www.eff.org/ and the Organization for Transformative Works http://www.transformativeworks.org/ in signing an amicus brief https://www.eff.org/files/2018/01/25/eff_otw_and_wikimedia_foundation_amicus_brief_-_de_havilland_v_fx.pdf in the case of de Havilland v. FX https://www.eff.org/deeplinks/2017/10/courtroom-feud-leaves-accurate-speech-about-celebrities-unprotected. This case, currently before the California Court of Appeal, has the potential to be very consequential for free expression and First Amendment rights.

This case arises from a dispute over rights of publicity https://en.wikipedia.org/wiki/Personality_rights relating to the docudrama series Feud: Bette and Joan, which was produced by the US cable channel FX. The docudrama is a dramatic interpretation of the famous feud between actresses Joan Crawford and Bette Davis. Olivia de Havilland is an actress who is portrayed in the docudrama by actress Catherine Zeta-Jones. De Havilland sued FX, claiming that they did not ask her permission before portraying her in the series, and also making arguments about elements of the portrayal.

The initial ruling in this case sets a disturbing precedent; essentially, the court found that de Havilland is entitled to damages from FX because she does not agree with the accuracy of her portrayal in the docudrama. This decision could have serious negative implications for any portrayal or depiction of a person that is even mildly critical. This could include a Wikipedia page on living persons, or other fact-based works. This could also chill expression on smaller projects that do not have the resources to defend themselves against litigation, such as independent films or publishing websites.

Free expression, and the right to discuss information about historical figures and notable people, is fundamental to the dissemination of free knowledge. By joining this amicus brief, we are adding our voice to the defense of that right for all creators, big or small.

Best,

Jan

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Jan Gerlach Public Policy Manager Wikimedia Foundation 1 New Montgomery Street, Suite 1600 San Francisco, CA 94104 jgerlach@wikimedia.org @pd_w https://twitter.com/pd_w @wikimediapolicy https://twitter.com/wikimediapolicy