California Court of Appeal, March 26, 2018

The California Court of Appeal strikes actress Olivia de Havilland’s lawsuit alleging that her portrayal in the docudrama Feud: Bette and Joan violated her right of publicity and constituted misappropriation and false light invasion of privacy, finding that the creative liberties taken by Feud were protected by the First Amendment.

Actress Olivia de Havilland sued FX Networks, LLC and Pacific 2.1 Entertainment Group, Inc., which created and produced Feud: Bette and Joan, a television mini-series about 1960s film stars Bette Davis and Joan Crawford. In the series, the actress Catherine Zeta-Jones portrays de Havilland, a close friend of Ms. Davis. De Havilland sued, alleging (1) violations of her statutory right of publicity; (2) the tort of misappropriation; (3) false light invasion of privacy; and (4) unjust enrichment. She contended that FX was required to obtain her permission before using her name, likeness and story in the series, and alleged that the series falsely portrayed her giving an interview at the 1978 Academy Awards, referring to her sister as a “bitch” (she had used the term “dragon lady”), and alluding to Frank Sinatra’s overabundant consumption of alcohol.

FX filed a motion to strike under California’s anti-SLAPP law. The trial court denied FX’s motion as to all four causes of action, finding that the portrayal, which was meant to be realistic, was not entitled to First Amendment protection, because it was not “transformative.” FX appealed, arguing that based on this reasoning, the “more realistic the portrayal, the more actionable the expressive work would be.” The court of appeal reversed, directing the trial court to grant the motion and strike de Havilland’s complaint.

A special motion to strike under the anti-SLAPP statute is intended to dispose of lawsuits brought to “chill the valid exercise of a party’s constitutional right of . . . free speech.” The court explained that, in resolving an anti-SLAPP motion, it engages in a two-step inquiry: (1) “the defendant must show the conduct underlying the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition in connection with a public issue;” and (2) “[i]f the defendant satisfies this prong, the burden shifts to the plaintiff to prove she has a legally sufficient claim and to prove with admissible evidence a probability that she will prevail on the claim.” When a plaintiff is a public figure, like de Havilland, she must show actual malice in order to survive an anti-SLAPP motion. De Havilland conceded that FX met its burden under the first prong of the anti-SLAPP analysis. Therefore, the court focused its analysis on the second prong of the inquiry.

The court first considered de Havilland’s claims for violation of her statutory right of publicity and misappropriation under Civil Code section 3344, which holds liable “[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without such person’s prior consent.” The court found the FX docudrama would likely not constitute a product or merchandise, but determined not to resolve the issue because, even assuming the series constituted a “product, merchandise, or good,” and the portrayal of de Havilland constitutes a “use” of de Havilland’s name or likeness, the court held that Feud is constitutionally protected by the First Amendment, “which safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays.” As a result, the court found that Feud’s creators were not required to purchase or otherwise obtain the rights to de Havilland’s name or likeness. The court also rejected de Havilland’s arguments that the fictitious interview was “structured as an endorsement of [Feud],” and that the use of de Havilland’s name in conjunction with photographs of actress Zeta-Jones in a social media promotion for the series supported de Havilland’s right of publicity claims. The court explained that the use of a person’s name or likeness to advertise an expressive work portraying that person is not actionable as an infringement of the right of publicity.

The court also held that the use of de Havilland’s likeness was transformative as a matter of law. It explained that, “[w]hen the value of the work comes principally from some source other than the fame of the celebrity – from the creativity, skill, and reputation of the artist – it may be presumed that sufficient transformative elements are present to warrant First Amendment protection.” Feud’s“‘marketability and economic value’ does not derive primarily from [de Havilland’s fame], but . . . from the creativity, skill and reputation of Feud’s creators and actors,” according to the court.

Turning to de Havilland’s false light invasion of privacy claim, de Havilland, as a public figure, was required to demonstrate a “reasonable probability she can prove FX broadcast statements that are (1) assertions of fact, (2) actually false or create a false impression about her, (3) highly offensive to a reasonable person or defamatory, and (4) made with actual malice.” The court held that de Havilland could not meet this burden in light of the fact that the Feud was a docudrama, which the public has come to expect will take certain creative liberties. As to the fictitious interview and reference to Frank Sinatra’s drinking, the court held that such scenes are neither reasonably susceptible to a defamatory meaning nor highly offensive to a reasonable person. In fact, the court found that Feud’s portrayal of de Havilland was generally positive. As to the use of the word “bitch” by de Havilland to describe her sister, the court held that her real-life use of the word “dragon lady” would not have produced a “different effect on the mind of the reader from that which the . . . truth would have produced,” and that therefore, the use of the term was substantially truthful. The court also held that de Havilland did not demonstrate that Feud’s creators acted with actual malice, as publishing a fictitious work cannot, by itself, mean the author acted with actual malice. In fact, the court found the portrayal of de Havilland was meant to be “wise” and “respectful.”