Briefs Rain Down on California Court of Appeal in De Havilland Case

By Jennifer E. Rothman
January 26, 2018

At least five separate amicus briefs have been filed in the expedited appeal in Olivia de Havilland v. FX Networks. I filed an amicus in this case with a number of other law professors in support of FX Networks. We argue that the First Amendment protects the use of real people, particularly public figures, in biographical movies and television series, as well as in written works. This should not be controversial. But apparently it is.

Three other briefs were filed agreeing with us and FX that the use of a character based on de Havilland in a mini-series based on the real-life feud between Bette Davis and Joan Crawford is fully protected by the First Amendment against right of publicity claims.

The Motion Picture Association of America filed a brief in support of FX and addressed the false light claim, as well as the right of publicity claim brought by de Havilland. The MPAA contends that the First Amendment protects “artistic license” and “common storytelling techniques” from false light claims arising out of dramatizing true stories. In the context of right of publicity claims, the MPAA argues that motion pictures should usually be exempt from all publicity-based claims. It contends that such claims do not survive strict scrutiny.

The MPAA also contends that the transformativeness test should not be applied to motion pictures. We argued in our brief that even under the transformativeness test the use of de Havilland’s identity is protected speech, as the work itself transforms her identity and is protected under California law. But as we noted in our brief, we are not fans of that loosey-goosey, hard-to-apply test.

The Electronic Frontier Foundation also sided with FX on this one. This case is making for some unusual bedfellows, as the MPAA and EFF are usually on opposite sides in disputes over content use and ownership. EFF’s brief is joined by the Organization for Transformative Works and the Wikimedia Foundation. The brief focuses on the right of publicity claim, and argues that allowing a claim by de Havilland would greatly chill speech about “real world subjects” and “condemn the docudrama genre to tepid hagiography.” (And should that send you to the dictionary it means –idealized biographies.) A real danger if celebrities and others can control depictions of their lives.

The International Documentary Association saw the danger that the trial court’s decision poses to documentary filmmakers and news reporting and chimed in with its own brief in support of FX. The brief prepared by UC Irvine’s IP clinic, also focuses on the right of publicity claim. It warns about the impact on journalism and documentary filmmaking if the trial decision stands. The brief contends that the right of publicity is only constitutional if it applies to commercial speech.

The sole amicus filed in support of de Havilland was by the Screen Actors Guild, SAG-AFTRA. Perhaps wanting to support the famous, well-liked, and Academy-Award winning actress, SAG-AFTRA has staked out an extreme position that would leave many of its members—even its high-profile ones—without Oscars. The brief's interpretation of the First Amendment at times calls for banning any unauthorized biographical films. The brief—in contravention of established California Supreme Court case law―suggests that depictions of real people in docudramas based on real people are never transformative. Oddly, at the end of the brief, SAG-AFTRA backs off a bit, saying maybe only if the false light claim prevails could a right of publicity claim proceed―this would require that right of publicity claims meet the actual malice standard for falsity. This is a far more free-speech protective standard than the transformativeness test and perhaps not what SAG-AFTRA ultimately meant to argue. But, if we take them at their final word (rather than the preceding few pages of the brief), de Havilland’s right of publicity claim would be barred and collapse solely into a false light claim.

Despite its filing, SAG-AFTRA should hope de Havilland loses this appeal. Otherwise, its members, who have enjoyed amazing roles all because of the First Amendment, may be beating down the union's doors with torches and pitchforks. The First Amendment and limits on overexpansive right of publicity laws have allowed SAG-AFTRA's members to perform some of their greatest roles―whether Octavia Spencer, Kevin Costner and Jim Parsons in Hidden Figures, Jesse Eisenberg as Mark Zuckerberg in The Social Network, or this year’s likely Academy-Award winning performance by Allison Janney in I, Tonya.

At the very least, the sheer number of high-profile briefs in this case will have an impact on the California Court of Appeal as it considers this case. To (mis)quote Bette Davis (of relevance for this suit): "Fasten your seat belts, it's going to be a bumpy [ride]." (For movie trivia fans, she actually said "bumpy night").