The California appellate court ruling which dismissed actress Olivia de Havilland’s suit against FX’s Feud will remain in place after the U.S. Supreme Court rejected de Havilland’s petition for review last week.
The now 102-year-old actress best known for roles in Gone With the Wind and The Adventures of Robin Hood, de Havilland alleged that FX’s depiction of her in the Emmy-award-winning docudrama Feud infringed her right of publicity and portrayed her in a false light. Feud aired on FX in March of 2017 and was an eight-part miniseries that illustrated the intense rivalry between world famous actresses Bette Davis and Joan Crawford. Olivia de Havilland, a close friend of Davis, was played by Catherine Zeta-Jones and her character appears for a total of 17 minutes across the entire season.
Specifically, de Havilland’s right of publicity claims hinged on her contention that she did not give FX permission to use her name, identity, or image. Further, de Havilland complained that the depiction of her giving a fake interview on the red carpet, accusing Frank Sinatra of drinking all the alcohol in a green room for a production, and calling her sister, Joan Fontaine a “bitch” in an interview (de Havilland had actually called her a “dragon lady”) portrayed her in a false light.
FX claimed de Havilland’s suit amounted to nothing more than an ill-fated attempt to silence protected speech and filed an anti-SLAPP motion which was denied. The trial court reasoned that de Havilland’s right of publicity claims held merit based on declarations by purported entertainment industry experts claiming it is customary in the industry to obtain an appearance release from all individuals depicted in a work. Moreover, the trial court held that FX’s portrayal of de Havilland was not “transformative” because its producers were attempting to portray her “as real as possible.” The trial court also found that a jury could find that de Havilland was portrayed in a false light as a “gossip who uses vulgar terms about other individuals.”
FX’s appeal ultimately set the stage for a decision that vindicates the First Amendment and benefits all filmmakers and writers. In her opinion for the Court, Associate Justice of the Second District Court of Appeal Anne H. Egerton recognized that books, films, plays, and television shows often portray real people and that these people, regardless of their fame, do not “own history.” Accordingly, de Havilland “does… [not] have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of [her].”
The Court held that the First Amendment “safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transforms them into art, be it articles, books, movies, or plays.” Further, the fact that some producers may obtain appearance releases or “life story rights” as a means of obtaining greater access to information about subjects and avoiding litigation does not mean that the First Amendment requires such agreements and, indeed, the Court held that such agreements are not required. The Court noted that it might be a different story if de Havilland’s image was being used in a way that implied she sponsored or endorsed the work, but the Court reasoned that merely depicting de Havilland does not automatically indicate an endorsement. Moreover, the Court found that her depiction was “transformative” because Feud told a complex story, the use of de Havilland’s identity was merely one of the raw materials from which the work was synthesized, and the work’s marketability and economic value derived from the creativity and skill of the creators and actors in Feud – not the depiction of de Havilland, which was only for 17 minutes of the 392-minute series.
With respect to de Havilland’s false light claim, the Court found it unpersuasive. Specifically, the Court held that merely portraying de Havilland giving a fictitious interview would hardly subject her to “hatred, contempt, ridicule, or obloquy.” To the contrary, the Court found that de Havilland was portrayed as a “wise, witty, sometimes playful woman” and Zeta-Jones’ portrayal of her was “overwhelmingly positive.” Further, the series’ portrayal of de Havilland stating that Sinatra drank all the alcohol in a dressing room was not actionable because “Sinatra’s fondness for alcohol was well known” and a depiction of de Havilland saying this would not subject her to ridicule. Finally, the Court found the fictitious “bitch” comment about de Havilland’s sister was not materially different from de Havilland’s actual reference to her sister as a “dragon lady.”
Of course, since de Havilland is a public figure, she had to demonstrate that Feud’s creators acted with actual malice when they made false statements about her. De Havilland argued that actual malice was established by the producers’ concession that the red carpet interview, quip about Sinatra, and “bitch” comment never happened but, rather, were added for dramatic effect. The Court was not convinced, holding that “fiction is by definition untrue.” Thus, “[p]ublishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice.” Rather, to prevail, a plaintiff must show that the defendant intended to convey a “defamatory impression.” Here, the Court found that the producers intended to portray de Havilland as “a wise, respectful friend and counselor to Bette Davis, and a Hollywood icon with a unique perspective on the past,” and such a depiction was not grounds for a false light claim.
Although firmly defeated, de Havilland’s attorneys told the Los Angeles Daily Journal that “Miss de Havilland hopes she will live to see the day when justice is done.” For filmmakers, producers, and writers, that day has already come.
 A “SLAPP” is a Strategic Lawsuit Against Public Participation. Typically such an action is not filed because it holds merit, but rather to silence speech. In response, California and numerous other states have passed “anti-SLAPP” statutes, which allows a defendant to file a special early motion to strike a SLAPP action and typically features the following procedural/substantive advantages: (1) a stay on discovery; (2) an expedited hearing of the anti-SLAPP motion; (3) an immediate appeal if the motion is denied; and (4) an award of attorneys’ fees to the party prevailing on the motion.