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Actress Olivia de Havilland sued the FX Networks, LLC, and Pacific Pacific 2.1 Entertainment Group, Inc. (collectively FX), the creators and producers of the television docudrama Feud: Bette and Joan, alleging causes of action for violation of California's statutory right of publicity, the common law privacy tort of misappropriation, false light invasion of privacy, and unjust enrichment. De Havilland asserted that she did not give her permission to the creators of the Feud miniseries to use her name, identity, or image in any manner. The trial court denied FX's special motion to strike the complaint, pursuant to California's anti-SLAPP statute. However, in an opinion issued on March 26, 2018, and authored by Judge Anne H. Egerton, the California Court of Appeal for the Second Appellate District reversed the order denying the special motion to strike.
The Court of Appeal held that the First Amendment protected FX's portrayal of de Havilland in the docudrama without her permission. The portrayal of de Havilland constituted a "use" of her name or likeness within the scope of both the right of publicity statute and the misappropriation tort. Although producers of films and television programs may enter into agreements with individuals portrayed in those works for a variety of reasons, the First Amendment does not require such acquisition agreements. In addition, the docudrama’s portrayal of de Havilland was transformative. As a matter of law, Feud’s marketability and economic value did not derive primarily from de Havilland’s fame but rather came principally from the creativity, skill, and reputation of Feud’s creators and actors.
The court also held that De Havilland did not carry her burden of proving with admissible evidence that she would prevail on her false light invasion of privacy claim. That claim was based on FX’s employing a fictitious interview as a framing device and the de Havilland character reference to her sister as a “bitch” when in fact the she term she used was “dragon lady.” The court noted that fiction is by definition untrue. Publishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice. The portrayal of de Havilland in the docudrama was not highly offensive to a reasonable person as a matter of law, but even if were, de Havilland did not demonstrate that she could prove actual malice by clear and convincing evidence.
Because de Havilland’s right of publicity and false light claims failed, her unjust enrichment claim also failed.
In its conclusion, the court observed that the right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals.
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Case caption: OLIVIA DE HAVILLAND DBE vs. FX NETWORKS LLC ET AL
California Superior Court Docket Number: BC 667011
Author: Hans Thielman, Lexis-Nexis Case Law Editor
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