This court ruling could wreck the future of realistic science fiction

A ruling issued today in an obscure lawsuit against Electronic Arts could have wide-ranging implications for movies, television, and even books — especially if they strive for realism. In fact, alarm bells should be going off for anyone interested in depicting the future realistically in their work.

The court determined that creators cannot "realistically" depict a celebrity in fiction, even if they do not use the celebrity's name. This would be a violation of the celebrity's "right of publicity," which is sort of like the right to privacy for public figures. Based on this ruling, a court might actually be able to issue an injunction against showing a movie like The Social Network, because it realistically depicts Mark Zuckerberg. But it's even weirder than that, because the celebrity in this case wasn't even named in the game where his so-called likeness appeared. He was just depicted in a "realistic" way.

Over at the Electronic Frontier Foundation, Daniel Nazer describes the case:

The plaintiff, Sam Keller, brought the case to challenge Electronic Art (EA)’s use of his likeness in its videogame NCAA Football. This game includes realistic digital avatars of thousands of college players. The game never used Keller’s name, but it included an avatar with his jersey number, basic biographical information, and statistics. Keller sued EA claiming that the game infringed his right of publicity—an offshoot of privacy law that gives a person the right to limit the public use of her name, likeness and/or identity for commercial purposes.

EA argued that it has a First Amendment right to use Keller’s likeness in an expressive work such as a video game. The Ninth Circuit recognized that EA had a First Amendment interest in the video game. But then the opinion goes sideways. In balancing Keller’s right to control the use of his identity against EA’s right to free speech, the Ninth Circuit applied the deeply flawed ‘transformative use’ test. This test . . . asks whether the use of someone’s identity is transformative, i.e., creates something new with a different purpose or character. Two judges on the panel found that EA’s depiction of Keller was not transformative. They reasoned that the “use does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.”

Imagine you're writing a hard science fiction story about the near future, and you want to include references to today's celebrities or political figures — but 20 years from now. Or maybe you just want to include people who are kind of like these celebrities. Either way, this ruling could allow those celebrities to sue you for using their likenesses. Nazer notes that one of the dissenting judges, Judge Sidney Thomas, is already worried about this. The judge wrote:

The logical consequence . . . is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.

What's dangerous about this ruling is that it punishes creators who strive for realism. Futurama's use of famous people's heads in their stories would likely be protected because the scenario isn't "realistic." But that dark, futuristic story you were thinking of writing about the exploits of an American ex-president who is obsessed with placing his entire nation under surveillance using drones? That might just be so realistic that it gets your story sued out of existence.

Read more about this at EFF