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Analysis

In Publicity Rights 'Feud,' The Show Ain't Over Yet

Law360 (May 8, 2018, 7:44 PM EDT) -- Legendary actress Olivia de Havilland is asking the California Supreme Court to revive a lawsuit she filed over her portrayal in the FX docudrama “Feud: Bette and Joan” — a result experts say would have a strong chilling effect on films about real people.

The 101-year-old actress sued FX last year over her unauthorized appearance in the show, which told the story of the infamous Hollywood rivalry between Bette Davis and Joan Crawford. De Havilland claimed the network violated her right of publicity by using her name and likeness without permission, while also casting her in a false light by taking artistic liberties with the story.

Though an appeals court ruled in March the case was barred by the First Amendment, De Havilland filed a petition with the state’s high court last week, saying she’d been deprived of her right to a trial and urging the justices to revive her case.

If the high court eventually does so, experts warn it could lead to major uncertainty about the extent to which filmmakers can incorporate real-life figures like De Havilland into their movies.

“Producers could be at risk of more ‘heads I win, tails you lose’ lawsuits, whereby realistic portrayals result in right of publicity claims and fictionalized portrayals result in false light claims, chilling producers’ willingness to make intriguing docudramas,” said Joel R. Weiner, a partner at Katten Muchin Rosenman LLP who represents movie studios and television networks.

The case filed by De Havilland has drawn a lot attention in entertainment law circles ever since last September, when a trial judge refused to dismiss it under California’s so-called anti-SLAPP law — a statute designed to quickly end cases that threaten free speech.

The kind of claims De Havilland was making arise from time to time but are almost always quickly tossed as barred by the First Amendment. A decision allowing the case to move forward, on the other hand, raised alarm bells.

“The practical concern was that the decision would bar unauthorized depictions of real people, whether famous actresses, civil rights heroes or politicians,” said Jennifer E. Rothman, a professor at Loyola Law School and an expert on publicity rights law. “This would provide a powerful tool of censorship and represent a sea-change in how Hollywood makes television series and movies.”

FX appealed the ruling to the California Court of Appeal, drawing support from a number of outside groups concerned about its impact on free speech, including Netflix, A&E and Wikipedia.

In March, the network and its supporters won big. The court offered a full-throated rejection of the trial court decision, emphatically ruling the First Amendment gives authors broad leeway to use real people in their creations, both in purely factual and fictionalized works.

The appeals court criticized the lower court for its apparent contradiction — that FX had not fictionalized De Havilland enough to avoid her name-and-likeness claims, but had put itself on the hook for her false light claims by fictionalizing her at all.

“The trial court’s ruling leaves authors, filmmakers, playwrights and television producers in a Catch-22,” the appeals court wrote. “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 a fanciful, imaginative — even fictitious and therefore ‘false’ — way, they face a false light lawsuit if the person portrayed does not like the portrayal,” the court said. “The right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals.”

The decision, spelled out in a 38-page opinion, was a ringing endorsement of free speech and a clear bright-line roadmap for what filmmakers are legally allowed to do.

“If you gave filmmakers or media defense lawyers the chance to write an opinion, they’d write this one,” joked Lincoln Bandlow, a partner at Fox Rothschild. “Not only can you advise clients clearly, but if you get one of these kooky claim letters, you get to send them this decision and say, ‘Read this and go away.’”

De Havilland’s petition to California Supreme Court, filed on Thursday, asks the high court to undo that decision.

She argues the quick dismissal of the case under the anti-SLAPP law violated her right to a jury trial. The actress also warned that the ruling, if left standing, would “decimate” the previous legal standard for when someone can sue over the right of publicity, and would also “effectively abolish virtually all claims of defamation and false light.”

Whether those arguments resonate with the state high court enough for it to agree to tackle the case is anybody’s guess. Like the U.S. Supreme Court, the California Supreme Court only takes on a fraction of the cases that are sent to it.

But if it does, it will set up an eventual ruling that could have major disruptive implications for filmmakers — particularly those who want to use the phrase “based on a true story” on their movie poster.

“There may be reasons that you want to do rights deals, but the First Amendment is supposed to protect the right of creative people to write stories about real life people,” Bandlow said. “If the trial court decision were to become precedent, it would alter dramatically the production of these kind of works and make it incredibly burdensome to even try to go forward with them.”

--Editing by Philip Shea.

For a reprint of this article, please contact reprints@law360.com.

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