The Threat Posed to History & Storytellers

By Jennifer E. Rothman
May 15, 2018

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.