The de Havilland v. FX Networks, LLC Appeal: Round 2 Goes to FX

n 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.”

Industry players and legal experts alike thought both cases should have been easily won on First Amendment grounds, and the hurdles thrown up by the lower-court decisions on either coast have sent a wave of worry through the film, television, and publishing industries. The de Havilland appellate decision out of California is a reassuring win for creators and a boon to the First Amendment.

The Background:

In March 2017, FX released Feud: Bette and Joan, an eight-part docudrama about the well-known rivalry between actresses Bette Davis and Joan Crawford, the poor treatment of women in Hollywood as they age, and the Hollywood men who fanned the flames of this and other feuds to their commercial benefit. Actress Olivia de Havilland, portrayed by Catherine Zeta-Jones, appears a few times throughout the series for approximately 17 minutes total. In June 2017 de Havilland filed this lawsuit against FX alleging, among other things, that the depiction of her in the series (1) violated her common law and statutory rights of publicity, and (2) invaded her privacy by placing her in a false light (a claim similar to defamation).

Following a hearing the trial court denied FX’s motion to strike the complaint under California’s anti-SLAPP statute – a mechanism utilized by defendants to ward off lawsuits that seek to suppress First Amendment rights.  The court held that while the series constitutes speech involving an issue of public concern, de Havilland had satisfied her burden under the anti-SLAPP statute to prove that her complaint was not without merit. As a result, de Havilland’s claims were allowed to proceed. As to the right of publicity claims, the trial court found that de Havilland had met her burden by showing that she had not been compensated for the use of her name and likeness in the series, and that use “resulted in economic benefit to the Defendants.” As to the false light claim, the lower court noted that several scenes were either entirely fictional or contained factual inaccuracies such that “a viewer … may think [de Havilland] to be a gossip who uses vulgar terms about other individuals.” FX’s appeal of this ruling was placed on an expedited schedule upon a request that, in light of de Havilland’s age of 101, the case be handled swiftly.

The Decision on Appeal:

The Court of Appeal reversed the trial court’s decision in its entirely. Finding no likelihood of success under the anti-SLAPP statute, the court rejected de Havilland’s statutory and common law right of publicity claims on the basis that the series is a creative work entitled to full First Amendment protection, and was in no way entitled to a lesser protection because it generated income for FX. The court also noted, importantly, that FX’s failure to secure rights from de Havilland for its portrayal of her in Feud was immaterial to its analysis. While such rights are often secured when producers want a certain level of access to an individual’s life story or a promise not to sue, First Amendment protection for an expressive work is not contingent upon the payment of a fee for the right to portray a real person.

The court likewise rejected de Havilland’s false light invasion of privacy theory. Because docudramas are generally recognized as a dramatizations or fictionalizations of real events – not documentary or straight reportage – they necessarily (and customarily) contain “scenes, conversations, and event characters [that] are fictionalized and imagined.”  In fact, FX admitted to fictionalizing, to various degrees, all of the scenes in which the de Havilland character appears. The lower court, finding that a lack of factual accuracy was equivalent to falsity, had held this admission against FX.

De Havilland nonetheless argued that these scenes portrayed her as a “vulgar gossip” and a “hypocrite”, and that such portrayals are false and damaging to her reputation. The court, finding the depictions of de Havilland to by and large be positive, disagreed, and rejected the contention that any of the depictions would be highly offensive to a reasonable person.

For instance, in one scene, the de Havilland character is interviewed on the red carpet at the Academy Awards in 1978. The court found specifically that, although the scene is entirely fictional, fictionalization alone is not enough to state a false light claim – especially given that viewers are generally aware that docudramas such as Feud rely on dramatic interpretation of historical events to fit the style of the series. Even assuming for argument’s sake that the fictional interview was “false,” the court held that the depiction of de Havilland in this scene was not defamatory – in fact, the court went so far as to call the depiction “overwhelmingly positive.”

In another scene, the FX depicted the de Havilland character as referring to her sister Joan Fontaine as a “bitch” during a phone call with the Bette Davis character. The court noted that the writers’ decision to portray de Havilland as referring to her sister as a “bitch” – when her actual words were “dragon lady” – was well within their defense of “substantial truth,” given that the two remarks, in light of the public animosity between de Havilland and Fontaine, would not have different effects on a viewer’s opinion of de Havilland. In fact, the court conceded that it was not within its power to “dissect the creative process” to determine whether the creative decision to change the words was necessary.

Takeaways:

As the law stands now under de Havilland, at least in California, when depicting real people in a creative work, studios, networks, and other content producers should remember:

1. Generating revenue from the exploitation of a creative work will not rob that work of its First Amendment protection against a right of publicity claim. A purely “commercial” work is generally one that promotes or proposes a commercial transaction, and may be less likely to be protected, but in many cases, even incidental advertising of a creative work will be protected.
2. It is not necessary to secure a real person’s life story rights before depicting that person in a creative work (assuming the depiction is accurate within a margin of artistic license, and is not defamatory).
3. When creating fictional scenes and dialogues, ask whether the fictionalized material is reasonably in line with the real person’s nature. If it isn’t, then ask whether the depiction would be defamatory or highly offensive to a reasonable person.

Although de Havilland’s attorneys have decried the appeal court’s decision as contrary to well-established law, and have promised to take a further appeal, the de Havilland decision sits well with many members of the entertainment industry and the academic community.  The numerous amici who filed briefs on behalf of FX – from the MPAA, Netflix, and the International Documentary Association, to law professors Jennifer E. Rothman and Eugene Volokh – are no doubt reassured that this feud has come out, in their view, on the right side of the law.