The New York Times carried a story this weekend about a disturbing lawsuit that will be argued in the California Court of Appeal later this month. Olivia de Havilland sued FX for running the docudrama “Feud,” a fictionalized account of the feud between Joan Crawford and Bette Davis; a character portraying deHavilland has a modest appearance in the series. De Havilland's basic contention is that, because she is celebrity who is able to make a profit from her appearances, the California right of publicity forbids the publication of any account that portrays her unless she is paid for the portrayal and she gives permission to the portrayal.
De Havilland also complained that the bit part in the film harmed her reputation because it portrayed her as having used slightly off-color language to describe some other Hollywood celebrities (namely, she referred to someone as a “bitch” and said that she doesn’t portray “bitches” in movies). She claims that this is language that she did not use on those specific occasions and, indeed, would never have used personally. The trial court record apparently included the results of the defendants’ efforts to scour the public record to identify occasions on which de Havilland did use foul language, as well as her arguments about how those occasions were different from the use portrayed in the film. Apparently, she admits having called someone a “”dragon lady” but not a “bitch.”
The trial court denied FX’s motion to dismiss de Havilland’s right of publicity claim under the California anti-SLAPP statute, holding that although fictional works can be made without obtaining the permission of the subject, because such works are “transformative.” At the same time, the judge refused to dismiss the defamation claims (pleaded under the tort of false light) because the negative statements that de Havilland had actually made about other celebrities was more ladylike – that is, the reputational claim was upheld because the bit character in the film was fictional, and fictional in a way that de Havilland did not like.
It is slightly worrisome that this appeal is proceeding in the Second District Court of Appeal, which issued a decision back in the 1980's that allowed Clint Eastwood to use a right of publicity claim to pursue what amounted to a defamation claim based on an article in the National Enquirer. We have argued elsewhere this is a dangerous precedent that was wrongly decided under California law.
The appeal has attracted a plethora of amicus briefs The MPAA amicus brief contained this pithy summary of the dangers presented by the trial court ruling: “Under the trial court's analysis here, any docudrama that purports to show its subjects realistically would be insufficiently transformative and therefore violate the right of publicity. . . . At the same time, under the court's analysis, any docudrama that is sufficiently transformative to avoid right of publicity liability will be sufficiently knowingly false to be exposed to false light liability.”
And it is not just fictionalized works that would be endangered. A documentarists' amicus brief identifies a number of unauthorized accounts of historical events that could be subjected to right of publicity claims from living individuals who either did not like the way they were portrayed, or might have demanded a payoff for their consent to the portrayal.
Imagine this sort of right of publicity claim in the hands of Donald Trump!
In the comments, both deHavilland's lawyer and a blogger who has written about the case from a perspective sympathetic to deHavilland, take issue with my analysis. Suzelle Smith, claiming to be a Public Citizen supporter, complains that my analysis would prevent suits over "knowing falsehoods about living people." Not so. The defamation cause of action enables suit over knowing falsehoods about living people. There is no need to distort "right of publicity" law to get at that tort. And as blogger Ken White points out in his comment, the final paragraph of Smith's comment, apart from her offensive family reference, simply reflects her ignorance of California law.
Both Smith and Lara Fowler ignore the danger to free speech interests from creating a right of publicity claim that allows public figures to prevent portrayal without getting their permission. Smith, at least, focuses on her client's complaints about the accuracy of the portrayal. Fowler plainly says that a quasi-fictional portrayal requires the permission of the person portrayed, including compensation. To my mind, fictional portrayals are not comparable to the televising of what amounted to the entire act of the so-called "human cannonball" in Zacchini. But Fowler oddly goes on to argue for a system under which private figures get less protection against false portrayals than public figures.
Finally, my closing hypothetical about Donald Trump might prove prophetic — in the news yesterday was widespread speculation that 2013 pop song by a C-list singer about breaking up with a married man might be her own account of the end of an affair she allegedly had with Donald Trump Jr. during his wife's fourth pregnancy, in 2011. (Don't let your curiosity impel you to listen to the song — it is truly dreadful). Under Suzelle Smith's theory, Donald Jr. could bring a right of publicity claim because his former lover did not get permission for alluding to their affair in her song.
The California Court of Appeal reversed in all respects