The Plot (and Feud) ThickensBy Jennifer E. Rothman
October 4, 2017
On Friday, a California superior court agreed with two-time Oscar winner Olivia de Havilland that her lawsuit against FX Networks could proceed. FX had sought to put a swift end to her lawsuit arising out of her portrayal in the network’s critically acclaimed miniseries, Feud. The series chronicled the longstanding conflict between Joan Crawford and Bette Davis. My prior post on the lawsuit discusses in more detail the miniseries and de Havilland's claims, but since that post de Havilland wisely amended her complaint to include false light and defamation claims.
FX had sought to have de Havilland’s Second Amended Complaint tossed using California’s anti-SLAPP law (Strategic Lawsuit Against Public Participation), which allows for the early dismissal of lawsuits that limit free speech. But when courts determine that there is a likelihood of success―at least if a plaintiff’s version of the facts is true―courts often let the cases proceed. This is what happened here.
No written order with legal conclusions has been released yet, but the court issued an order denying FX’s motion to strike de Havilland’s complaint. According to reports from the courtroom, California superior court judge Holly Kendig thought that de Havilland had met her burden of showing a likelihood of success on her defamation, false light, and right of publicity claims.
De Havilland’s defamation and false light claims merit some discovery, even though they will likely fail. Showing that FX and the creators of the show demonstrated actual malice toward de Havilland will be an uphill battle. Unless they knew that the portrayal was false or had reason to know that it was, her claims cannot stand. The defamation claim also is weak because her portrayal was not one that would negatively reflect on her. The false light claim may have more staying power because it has no such requirement. Still a false light claim must overcome the actual malice hurdle. Determining whether de Havilland was defamed or falsely portrayed, and whether this was done with actual malice will require fact-finding, and therefore the judge legitimately allowed those claims to proceed―even if FX will likely prevail on them.
But the court was on weaker and dangerous ground letting the right of publicity claim proceed. The court’s conclusion that the First Amendment does not protect against a right of publicity claim here is very troubling. And provides us with the very worst-case scenario that I and other law professors warned about when the Supreme Court declined to take up the decisions in Keller, Davis, and Hart. Those cases involved lawsuits against Electronic Arts for its video games that realistically portrayed student and professional athletes. Both the Third and Ninth Circuit adopted a narrow reading of California’s transformativeness test for determining First Amendment defenses to right of publicity claims. These federal appellate courts concluded that because the athletes were depicted in a realistic manner the uses were not transformative, and therefore no free speech defense applied. The dissenting judges in those cases warned that concluding that such uses were not transformative, and therefore not protected by the First Amendment, set us on a dangerous path. This path places at risk the depiction of real people, including public figures, in biopictures, biographies, and even history books.
Judge Kendig likely picked up this flawed line of cases and concluded that because FX tried to make a historically accurate portrayal there was “nothing transformative about this docudrama” and therefore no First Amendment defense applied.
This conclusion places in jeopardy a wide swath of expressive works and cannot stand. Thankfully, it likely will not. Even though the federal courts, and the Third and Ninth Circuits in particular, have gotten themselves into a fix with regard to First Amendment defenses to right of publicity claims, the California Supreme Court has been clear that transformative uses are allowed by the First Amendment, and that such transformations can include realistic depictions in biographies and docudramas. Hopefully, this case will be set right before reaching the California Supreme Court, but if things go that far, the right of publicity claim will likely be tossed on First Amendment grounds by that court.
Regardless, this case may outlast de Havilland, who is 101. The question is will the Supreme Court fix this mess before then or not?