Law Professors Call for Reversal in De Havilland and the Protection of Biographies and Biographical Films

By Jennifer E. Rothman
January 25, 2018

Yesterday, I filed a brief co-authored with Rebecca Tushnet and Eugene Volokh asking the California Court of Appeal to reverse the trial court’s decision in De Havilland v. FX Networks as to the right of publicity claim. The case, first filed at the end of June last year, involves a lawsuit by Hollywood legend Olivia de Havilland over her portrayal as secondary character in the miniseries Feud. It is currently under an expedited appeal schedule in Second Appellate District of the California Court of Appeal due to de Havilland’s age, 101, and a request in that light to speed things along.

The Third Amended Complaint claims violations of de Havilland’s right of publicity (under both California common law and Cal. Civ. Code § 3344), as well as false light and unfair competition claims. Her initial complaint did not include a claim for the false light tort―one that I wrote had a better chance of success than her right of publicity claim. Her right of publicity claim is that no one has a right to include her in a movie, book, or otherwise without her permission (and likely payment). She claims that the mere inclusion of a character based on her in a creative, fictionalized television show about the feud between Joan Crawford and Bette Davis violated her right of publicity.

As we contend in the brief, the use of real people, particularly public figures, in works of history and historical fiction is protected by the First Amendment. The trial court suggested that because of the realistic nature of the depiction of de Havilland the use was not a transformative use under the California Supreme Court’s interpretation of the First Amendment defense in right of publicity cases. The trial court therefore rejected a First Amendment defense to the right of publicity claim.

The California Supreme Court has been clear that uses of actors and others' identities in biographical films, like the use in Feud, are protected by the First Amendment and not subject to liability for right of publicity violations―at least not if the use is related to the underlying work, and the person’s name or likeness are not used in unrelated advertisements or merchandise, or to suggest sponsorship by the person. Here the use of de Havilland’s identity was clearly related to the story, which took place at a time when de Havilland was a major player in Hollywood and friends with Davis, one of the main characters. Nor did FX make unrelated merchandise or advertisements using de Havilland’s name or likeness, nor do anything to suggest she had endorsed her portrayal or the project itself.

The trial court decision is yet another example of the mess created by uncertainty regarding the scope of right of publicity claims, and the appropriate test for determining when the First Amendment blocks such claims.

If de Havilland’s right of publicity claim is allowed to stand, many future works will be altered or barred all together. Numerous Academy Award-nominated films, written biographies, television series, and many other works similar to them would not have been possible under such a rule. The ability of public figures to censor and alter stories and reporting about them is a chilling prospect.

The right of publicity should not be an end-run around the speech protections afforded against other similar claims, such as defamation and portrayal in a false light. Under those claims, plaintiffs can only proceed if they can show that the filmmaker portrayed them falsely, knowing (or recklessly disregarding) that the information was false (and would be perceived as true), the false depiction or statements were either defamatory or highly offensive to a reasonable person, and the use caused them harm. And, of course, in the context of fiction, there must be latitude for filmmakers (as with authors in written biographies and fiction) to create and imagine dialogue and scenarios without subjecting creators to right off publicity claims.

This case should not be a close one, and the California Court of Appeal should quickly right the ship here and protect the portrayals of real people in works of fiction and nonfiction, whether on TV, in the movies, or in books or magazines.

Here's our brief:  Brief of Amici Curiae Intellectual Property and Constitutional Law Professors in De Havilalnd v. FX

Here's the list of signatories and motion: Motion to File Amicus and List of Signatories

Other relevant documents:

Third Amended Complaint, De Havilland v. FX Networks

Trial Court Opinion, De Havilland v. FX Networks

FX's Opening Brief

De Havilland's Response

FX's Reply