De Havilland Seeks Review of Feud Decision

By Jennifer E. Rothman
May 4, 2018

Olivia de Havilland's lawyers have filed a petition seeking review in the California Supreme Court of a California Court of Appeal's recent decision holding that the First Amendment bars her false light and right of publicity claims arising out of the use of a character based on her in FX's docudrama Feud.

Her lawyers challenge the decision on three grounds: (1) a direct challenge to the anti-SLAPP statute and the appellate court's ability to look at evidence in a manner favorable to the defendant; (2) a claim that the First Amendment does not protect "knowing or reckless falsehoods" that harm a person's reputation, even in a work of fictionalized biography; and (3) a claim that realistic portraits cannot be considered transformative as a matter of law under the California Supreme Court's transformtiveness test from Comedy III.

The California Court of Appeal already adequately addressed each of these arguments. Allowing de Havilland's claims to proceed in this case poses a serious danger to filmmaking, biographies, fictional works that depict real events and people, and even to journalism. The California Supreme Court may therefore want to deny review of this case leaving in place the well-reasoned, speech protective appellate decision. Otherwise it could grant and summarily affirm. 

Having the state supreme court weigh in on realistic depictions and the transformativeness test has the advantage of making clear that the broader intepretation of the transformativeness test--focused on the overall work, rather than the person's likeness itself--is the correct one. Such a holding from the state's highest court would call into question the Ninth Circuit's decision in the video game athlete cases, Keller v. Electronic Arts and Davis v. Electronic Arts, that each relied on this misreading of the state's test.  Notably, EA has already cited the decision in De Havilland as a basis for reconsidering the rejection of a First Amendment defense to the alleged uses of atheletes' likenesses in Davis, now pending summary judgment.

Given the award of attorneys' fees in the appellate decision, I would still look for this one to settle. This petition may be a bargaining chip to escape de Havilland needing to foot a large defense bill here.