Industry & Advocacy News
April 2, 2018
The feud is finally over—at least for now. On Monday, March 26, a California appeals court released its opinion in the lawsuit filed by screen legend Olivia de Havilland against FX over its TV-miniseries Feud. In a significant win for creators, the court defended the First Amendment and found that de Havilland’s claims against the miniseries’ creators for misappropriation of her image, violation of her right of publicity, and defamation, among other related claims, were without merit.
The right of publicity is the right of individuals to prevent others from exploiting their identity, including their name, voice, and image, without permission. For instance, one cannot use a famous person’s image to sell shampoo or cologne or any other product without their permission, which usually comes with a demand for payment of large sums. The idea is that the person worked to create value in their identity and owns their identity, so only they have the right to profit from their identity or an association with them. It also protects the individuals and the public from false endorsements by trusted figures. There are exceptions to this right, however, to permit free speech and the communication of important information. No one has the right to prevent newsworthy information about them from being reported, or to prevent people’s opinions about them from being written, or history from being told. The greyer areas are entertainment products, such as movies, TV shows, videogames, and of course books, that are commercial, but expressive.
This is an important decision for authors of books, as a contrary ruling would impinge not just on the use of real people as characters in movies, but also as the subject of books and other works. The Court stated: “Feud is speech that is fully 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.”
Feud, which aired on FX in 2017, concerned the long-lasting competition and animosity between Joan Crawford and Bette Davis. De Havilland, played by Academy Award winning actress Catherine Zeta-Jones, appears in the eight-episode series for less than a total of 17 minutes. The character appears in an imagined interview used to frame the plot as well as in various scenes where she interacts with the main characters. In her suit, de Havilland argued that the production had never asked for her permission to use her in the series, and that scenes such as the interview and others where she calls her sister a “bitch” and implies that Frank Sinatra was an alcoholic, caused her emotional distress and damaged her reputation.
While the lower court had denied FX’s motion to dismiss the suit, the appeals court disagreed and found that Feud was protected by the First Amendment. With regards to the right of publicity claims, the court expressed doubts as to whether a creative work such as a docudrama could be subject to such a claim at all. Regardless of the answer to that question, the court found that the First Amendment protects creators who take raw materials from reality and transform them into art. The court also made it clear that the creators were under no legal obligation to ask for de Havilland’s permission to use her character, even if it might be “standard practice” in Hollywood, nor did the use of her character in a fictitious interview amount to an “endorsement” of the miniseries. While the lower court had argued that the use of de Havilland’s character was not “transformative” because the creators admittedly tried to make her “as real as possible,” the appeals court found that the character was just one small building block in a larger piece of art and arguably not the main reason for anyone to watch the show.
With respect to de Havilland’s other claim, the Court found that she was not defamed in that she had failed to show that the creators acted with actual malice (which was the standard since she is a public figure) or that the public would have unquestionably viewed her as “a hypocrite, selling gossip” and as a person who uses crude language about others. Although de Havilland may not have said all the things attributed to her, the filmmakers were entitled to their own creative process and decisions, as long as they did not purposely defame her.
As the court noted, the lower court’s decision to permit the case to proceed had created a catch-22 situation for creators of all kinds: “If they portray a real person in an expressive work accurately and realistically without paying that person, they face a right of publicity lawsuit. If they portray a real person in an expressive work in fanciful, imaginative—even fictitious and therefore ‘false’—ways, they face a false light lawsuit if the person portrayed does not like the portrayal.” It is therefore important not only for filmmakers and screenwriters, but to the whole creative community that draws inspiration and characters from reality—be it for fiction or speculative non-fiction—that the appeals court reversed the lower court’s decision and affirmed that no one owns history. Although the court stood with creators this time, the 101-year old actress’s lawyer has already indicated that she will appeal the decision, and that the feud might reignite once again.
