A California court recently ruled that a lawsuit by actress Olivia de Havilland over her portrayal in the television series Feud: Bette and Joan could move forward, denying FX Networks’ motion to strike the lawsuit on First Amendment grounds.
The show, which is a docudrama centered on the rivalry between Bette Davis and Joan Crawford during the early 1960s, portrays numerous real-life figures from the era including de Havilland. De Havilland, who is 101 years old, is portrayed by Catherine Zeta-Jones on the show. In her lawsuit, de Havilland alleges that the show falsely depicted her as a gossip who used vulgar language about other people, including her sister, and brought claims against FX for “false light” (a cause of action similar to defamation), violation of her right of publicity, and unjust enrichment.
FX responded by filing a motion to strike the lawsuit under California’s anti-SLAPP statute, which provides a procedural vehicle for defendants to obtain an early dismissal of meritless lawsuits that are premised on First Amendment activity which is in the public interest. In other recent cases, entertainment companies have successfully used the California anti-SLAPP statute to defend themselves from claims arising from expressive speech in motion pictures, television shows, and video games. For example, last year the producers of the film American Hustle used the anti-SLAPP statute to dismiss a defamation lawsuit stemming from a scene in that film, and in 2014 the video game publisher Activision Blizzard used the anti-SLAPP statute to dismiss right of publicity claims brought by the former Panamanian dictator Manuel Noriega over his depiction in Call of Duty: Black Ops II. The anti-SLAPP statute is an especially potent weapon for defendants because if they succeed in dismissing the plaintiff’s claims on an anti-SLAPP motion, the plaintiff must pay the defendants’ attorney fees.
In this case, however, in a departure from recent anti-SLAPP decisions involving works of entertainment, the court denied FX’s anti-SLAPP motion and ruled that de Havilland’s claims could go forward.
The California anti-SLAPP statute consists of a two-part test. First, the court considers whether the challenged claims arise from First Amendment activity protected by the statute. Second, it considers whether the plaintiff has demonstrated a likelihood of prevailing on the merits of the claim.
The court easily found the first prong of the anti-SLAPP test was satisfied, finding that the Feud television series is protected speech involving “a matter of public interest.” This holding is consistent with prior anti-SLAPP decisions involving popular works of entertainment.
Ultimately, however, the court denied FX’s motion on the second prong of the test, finding that de Havilland had shown a likelihood of prevailing on the merits of her false light and right of publicity claims. On her false light claim, de Havilland persuaded the court that four specific scenes in the show falsely portrayed her as a gossip and falsely gave the impression that she had referred to her sister, the actress Joan Fontaine, as her “bitch sister.”
FX argued that the scenes at issue were substantially accurate and that their dialogue was in fact based on a number of actual interviews de Havilland had given over the years. FX further argued that de Havilland could not show “actual malice”— the heightened legal standard which applies in false light and defamation claims when the plaintiff is a public figure— because the show’s writers had investigated and consulted numerous sources to ensure their dramatic portrayal of de Havilland was accurate.
The court rejected all of FX’s arguments, finding that de Havilland had met her burden in showing that the four scenes were “not factually accurate,” and that they were defamatory and would harm the economic value of de Havilland’s name and identity. It rejected FX’s reliance on books written about de Havilland, finding that the books themselves were not properly sourced.
The court also rejected FX’s First Amendment defense on the right of publicity claims, relying upon an expert declaration submitted by de Havilland stating that it is “standard practice” in the industry to compensate celebrities for use of their name and likeness and opining that the writers of Feud had “clearly and intentionally capitalized on the actual character and fame of Olivia de Havilland” through their depiction of her in the show.
The court’s ruling in de Havilland’s favor is surprising and seemingly at odds with recent cases affirming broad First Amendment protections for entertainment works, including a 2016 Ninth Circuit decision involving The Hurt Locker which affirmed the rights of filmmakers to tell stories based upon the lives of real individuals. The court’s ruling suggests that First Amendment protections for creative works which depict celebrities could be more limited compared to protections for works which depict non-celebrities, highlighting an area of uncertainty in the law.
It remains to be seen whether FX will appeal the court’s ruling. The California anti-SLAPP statute provides for an automatic right to appeal, which ordinarily stays all further proceedings in the trial court until the appeal can be decided. In this case, however, the judge has already fast-tracked the trial to take place in late November due to the 101-year old actress’ age. If FX does file an appeal, the court will have to first resolve this procedural conflict between California’s fast-track rules and the anti-SLAPP statue.