On Monday a California appeals court handed down a decision in the closely watched case of de Havilland v. FX Networks, LLC et al., triggering a collective sigh of relief from studios, networks, and other content producers. The court’s decision reaffirms two widely recognized principles: (1) that the First Amendment’s protection of creative works is not limited by the mere fact that a work generates income, and (2) that an individual cannot censor the way in which she is depicted in a creative work merely because she does not like that depiction.
These principles, as applied to the entertainment industry, have been challenged in recent years with a wave of cases such as de Havilland. For instance, a case in New York, Porco v. Lifetime Entertainment Services, LLC, was allowed to proceed after an appellate court held that the newsworthiness exception to New York’s statutory right of publicity did not apply to a docudrama that substantially fictionalized the life story of a real person. The court stated that such a work was “mainly a product of the imagination” and thus “nothing more than [an] attempt to trade on the persona of the plaintiff.” Continue reading