First Amendment Protects Use of Olivia de Havilland in FEUD Docudrama

By Jennifer E. Rothman
March 26, 2018

In a resounding victory for FX, the California Court of Appeal today reversed the trial court’s decision in de Havilland v. FX Networks on all counts.  The panel held that the anti-SLAPP motion to strike de Havilland's claims should have been granted both as to the right of publicity and false light claims.

The three-judge panel spoke clearly and powerfully about the importance of creative expression, and the need to realistically portray people, whether famous or not, and whether in fiction, docudrama, or biographies:

“Books, films, plays, and television shows often portray real people. Some are famous and some are just ordinary folks. Whether a person portrayed in one of these expressive works is a world-renowned film star—a “living legend”—or a person no one knows, she or he does not own history. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people. “

Of particular interest to those following the twists and turns of courts trying to navigate the application of the First Amendment in the context of right of publicity claims, the court here questioned whether California’s right of publicity (at least the statutory one, § 3344) even applies to films and television series.

The panel did not make a conclusion in that regard because of its holding that even if the law did apply to Feud, the First Amendment protected the use of de Havilland’s identity. Heavily citing to California Supreme Court Chief Justice Rose Bird’s opinion in Guglielmi, the panel noted the long history in California of protecting fictionalized biographical works. Guglielmi involved a biographical film about another Hollywood legend, Rudolph Valentino. Although he was dead at the time, and California law did not protect his identity, Bird concluded that even if his heirs had postmortem rights, the First Amendment would allow the use of a character based on Valentino in a movie.

With regard to California’s transformativeness test, the appellate court, citing to our brief, noted some concerns about the vagueness of the test, particularly in the context of expressive works. In light of this, the panel emphasized that the transformativeness test protects realistic portrayals of actual people, such as de Havilland. The use of de Havilland was one of the "raw materials" from which the larger work of Feud was "constructed."

Importantly, the panel highlighted that just because those depicted are sometimes paid, for a variety of reasons from seeking cooperation to avoiding litigation, such payments are irrelevant. The panel also made clear that advertising for the miniseries using de Havilland's name and identity would also have been permissible given the relevance to the underlying work.

The Court of Appeal also reversed the trial court's decision allowing de Havilland’s false light claims to proceed. The panel concluded that in the context of the fictionalized work, a reasonable viewer would not view the dialogue or scenes as facts, nor was de Havilland depicted in a way that would be highly offensive to a reasonable person:

“[F]iction is by definition untrue. It is imagined, made-up. Put more starkly, it is false. Publishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice.”

The court also concluded that de Havilland could not meet the high bar of showing that the creators recklessly disregarded the truth and recklessly presented facts that would likely be deemed highly offensive. Instead, the court, which watched the entire miniseries, concluded that the portrayal of de Havilland was highly favorable. The court also noted that “bitch” was a substantially true interpretation of the phrase “dragon lady,” something that de Havilland was known to have called her sister, Joan Fontaine, with whom she had a notoriously sour relationship.

De Havilland could seek review in the California Supreme Court and even the U.S. Supreme Court of the decision, but for now, the filmmakers, novelists and biographers of the world can all take a collective sigh of relief. The Court of Appeal also ordered attorney fees to be paid to the defendants, sending a clear message to future potential litigants.