The end of March brought favorable rulings – from opposite coasts – for right of publicity defendants. In both de Havilland v. FX Networks, et al., Case No. B285629, 2018 WL 1465802 (Cal. Ct. App. Mar. 26, 2018) and Lohan v. Take-Two Interactive Software, Inc., Case No. 24, 2018 WL 1524714 (N.Y. Mar. 29, 2018), California and New York state appellate courts ruled in favor of content creators in finding that they did not violate the right of publicity of Olivia de Havilland and Lindsay Lohan, respectively, in the miniseries “Feud: Bette and Joan” and video game Grand Theft Auto V. Both rulings are victories for content creators as courts continue to balance the First Amendment rights of such creators against the privacy and publicity rights of famous individuals.

De Havilland v. FX Networks

On March 26, 2018, a California appeals court ruled that the First Amendment protects content creators portraying individuals in expressive works. The appeals court wrote that “whether a person portrayed in one of these expressive works is a world-renowned film star [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.” de Havilland, 2018 WL 1465802, at *1.

In March 2017, FX Networks aired an eight-part “docudrama” miniseries, Feud: Bette and Joan, about film stars Bette Davis and Joan Crawford. Actress Catherine Zeta-Jones played Olivia de Havilland in two scenes. De Havilland claimed that Feud unfairly presented her as a profane gossiper. She sued FX Networks for violation of the common law privacy tort of misappropriation, California publicity law, false light invasion of privacy, and unjust enrichment, all related to the alleged unauthorized use of her likeness.

In the trial court proceedings, FX filed a motion to strike under California’s anti-SLAPP law, whose purpose is to expedite litigation that may inhibit free speech and other protected activities. The trial court denied FX’s motion to strike, finding that the docudrama constituted speech in a public forum and finding that de Havilland had sufficiently met her burden of proof that the lawsuit had the required “minimal merit” because “no compensation was given [to de Havilland] despite using her name and likeness.” Id. at *3.

The California appeals court reversed the trial court’s decision in full, stating that “[t]he First Amendment protects expressive works and the free speech rights of their creators. Some of these works are fiction. Some are factual. And some are a combination of fact and fiction. That these creative works generate income for their creators does not diminish their constitutional protection.” Id. at *1. The appeals court further held that expressive works – like Feud – constitute “speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life … and transform them into art, be it articles, books, movies, or plays.” Id. at *7.

The decision is a win for creators of expressive content, as a creator does not need to acquire the rights in order to use an image or likeness in most circumstances. According to de Havilland’s attorneys, she will appeal the decision.

Lohan v. Take-Two Interactive Software

On March 29, 2018, the State of New York Court of Appeals, New York’s highest state appellate court, ruled that Take-Two Interactive Software did not violate New York right of publicity laws because computer-generated images of a female character in Grand Theft Auto V (“GTAV”) were not recognizable as Lindsay Lohan.

Lohan filed her lawsuit against Take-Two Interactive Software in August 2014, alleging the GTAV character “Lacey Jonas” was her “look-a-like” and that her portrait and voice were misappropriated. While the trial court denied Take-Two Interactive’s motion to dismiss, the intermediate appellate court reversed that decision, finding that Lohan’s privacy was not violated because Take-Two Interactive did not use her name, portrait or picture. The appellate court also found that the video game did not fall under the New York statutory definition of “advertising” or “trade,” but was rather a “work of fiction or satire.” That decision by the appellate division was then appealed to the New York Court of Appeals.

In analyzing the issues of the case, the Court of Appeals focused very specifically on whether the avatar was Lohan. The Court first concluded that “an avatar (that is, a graphical representation of a person, in a video game or like media) may constitute a ‘portrait’ within the meaning of article 5 of the Civil Rights Law.” Lohan, 2018 WL 1524714, at *3. The Court then went on to say, however, that Lohan’s complaint should be dismissed because “the artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman that are not reasonably identifiable as [Lohan.]” Id. at *4. The Court also noted that “[i]t is undisputed that defendants did not refer to plaintiff in GTAV, did not use her name in GTAV, and did not use a photograph of her in that game. … [T]he ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore not actionable . . . ” Id. at *5.