Can Right of Publicity Claims Stop Televised Portrayals of Well-Known Figures?

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

0 thoughts on “Can Right of Publicity Claims Stop Televised Portrayals of Well-Known Figures?

  1. Lara Fowler says:

    The law deals differently with 1) the living and the dead, and 2) people who have an economic interest in their image and those who don’t. There is no threat to docudramas if those docudramas take the time to research and present historically accurate information about living people. There is only a threat if they want to lie. As to the permission issue, they did not have to ask her permission if they were going to be using reliable sources and presenting an image that is in line with the historical record. This image was NOT in line with the historical record, and the book from which they pulled the “I don’t play bitches” line had no footnote for that line, and the book itself was salacious. There are plenty of very reputable sources they could have chosen from (reputable, by the way, in the same way we judge news sources to be reputable or not), but they chose this one and should be held accountable for misinformation that comes from carelessness in choice of sources. Finally, as to the issue of public figures having more control over their images than private people—I’m not advocating for that. Everyone should have control over their image. But in the legal world we live in, the courts have made clear that public people who benefit from their image DO have more right to protect it.

  2. Lara Fowler says:

    I’ve been following the case closely since the beginning. I think some things need to be said in response to this article to clarify what the arguments actually are.
    First of all, Feud’s creation of the fake interview in combination with other, true statements and events without distinguishing between them is very problematic. It leads viewers to believe that what’s false is true, and if they find out that an event was created for the show, it leads them to question the validity of the true statements and events. It fits right into this era of Trump. I have seen just about everything Dame Olivia has ever done, and I was left confused thinking that the interview Feud created was a real interview I had somehow missed. If I was fooled, other people certainly were.
    Second of all, this is also a financial issue. Dame Olivia has spent time, effort, and money maintaining her dignified, refined temperament under enormous outside pressure that might threaten to destroy it. These qualities have brought her work and a livelihood. By using her identity without her permission or input, and putting vulgar words in her mouth, what FX has done amounts to theft. Courts have decided, specifically in the Zacchini case, that an individual who benefits economically from his or her image is entitled to be compensated for the time and effort it takes to produce something of interest to the public. Not only was Dame Olivia not compensated, but her image was used with reckless disregard.
    You might be inclined to refer to the issue of Tonya Harding’s mother and her portrayal in I, Tonya, and say that docudramas in general are at risk here. They’re not, and the two situations are not comparable. Courts have shown that they recognize when a person derives significant economic benefit from a person’s image. Tonya Harding’s mother is not a public figure in the same way that Olivia de Havilland is, and does not depend on her image for her livelihood. De Havilland does, and always has. The fact that the court threw out Sarver v Chartier shows us that if Tonya Harding’s mother were to bring a suit in the California court, she’d probably lose. De Havilland’s case is closer to Zacchini.

  3. Ken White says:

    Ms. Smith:
    You assert that California’s anti-SLAPP statute requires the plaintiff “to show with admissible evidence, that it will likely prevail at trial. This is a very high bar.” This is a common, but seriously misleading, misrepresentation of the statute. If a movant carries its burden of showing that a complaint is targeted at protected speech, California’s anti-SLAPP statute does require the plaintiff to come forward with admissible evidence and establish a “probability” that they can prevail. However, that “probability” requires only that the plaintiff come forward with any evidence which, if accepted, would be sufficient. In other words, it only requires the plaintiff to satisfy the same test they’d have to satisfy to survive summary judgment. This is not a high bar at all. California courts have repeatedly held that this is consistent with the right to a jury trial of civil claims, just as the summary judgment statute is.

  4. Suzelle Smith says:

    As supporters of Public Citizen, it is disappointing to see this tortured report of what is at issue in the de Havilland v FX case. The right to publicity in California is very narrow. It exempts accurate use of the name and identity of a living celebrity in news, public interest reports, and sports’ broadcasts. There is a separate statute for deceased individuals, which exempts movies specifically.
    Further, for anything published, all cases implicating the First Amendment require clear and convincing evidence of actual malice and are subject to the California Anti-SLAPP statute, which includes an award of attorneys’ fees to defendant from a losing plaintiff, but not to a winning plaintiff from a losing defendant. The statute, in fact, presents a serious incursion on the Constitutional right to a jury trial, because it forces plaintiff without any discovery, to show with admissible evidence, that it will likely prevail at trial. This is a very high bar. The Eastwood case, which Public Citizen decries, held that knowingly false statements about real people are not as a matter of law, in the “public interest.” That Public Citizen wants to protect knowing falsehoods about living people is, well, sad, and incredibly right wing. Donald Trump lines up completely with your position – the more lies to the public and the more fake news the better.
    If Dame Olivia loses this case, the public and honest reporters and writers, dedicated to the truth, will suffer. The winners will be that portion of the Hollywood film industry which believes it can include falsehoods in its productions about living people to sensationalize films and increase profits, knowing a portrayal to be false or who recklessly do not investigate the truth or falsity of what they publish.
    Public Citizen needs to at least get the facts straight for the case. “Feud” has Miss de Havilland, the narrator of the entire series, in a fake interview, calling her own sister, actor Joan Fontaine, a “bitch”, to members of the profession, to impugn her sister’s acting reputation. Shame on you, Paul. Have you told your mother your position? Miss de Havilland is entitled to have a jury listen to the actual evidence and make a decision. Or are you against that Constitutional, right?
    Suzelle M. Smith,
    Counsel for Miss Olivia de Havilland

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