Feud lawsuit foiled, but questions about transformativeness remain

De Havilland v. FX Networks, LLC, No. B285629 (Cal. Ct. App.
Mar. 26, 2018)
Reversing the trial court’s refusal to dismiss Olivia de
Havilland’s right of publicity and false light claims against FX’s show Feud, the California court of appeals
reasons, “[t]he First Amendment does
not require authors, filmmakers, playwrights, and television producers to
provide their creations to the public at no charge.”  [Now ask about sketch artists and video game
designers!]  Real people portrayed in
expressive works—at least “[b]ooks, films, plays, and television shows”–don’t “have
the legal right to control, dictate, approve, disapprove, or veto the creator’s
portrayal of actual people.”
Feud is a docudrama
about film stars Bette Davis and Joan Crawford, in which Academy Award-winning
actress Catherine Zeta-Jones plays de Havilland, a close friend of Davis.  The trial court found that the portrayal was
realistic and therefore not transformative. 
Noting that “this reasoning would render actionable all books, films, plays,
and television programs that accurately portray real people,” the court of
appeals reversed.
The de Havilland role takes up less than 17 minutes of the
392-minute, eight-episode miniseries. It’s mostly: (1) a fictitious interview
in which Zeta- Jones talks to an interviewer about Hollywood, its treatment of
women, and the Crawford/Davis rivalry; and (2) scenes in which Zeta-Jones
interacts with Susan Sarandon playing Bette Davis, her close friend.  De Havilland’s expert calculated the fair
market value of FX’s “use” in Feud of de Havilland’s “rights” to be between $1.38
and 2.1 million, or $84,000 and $127,000 per minute of screen time.  De Havilland also submitted declarations from
two men with “many years of experience in the entertainment business” claiming
that “standard practice” in the film and television industry is to obtain
consent from any “well-known living person” before her or his “name, identity,
character[,] or image” can be used in a film or television program.  FX contested these declarations, including
with a declaration from Casey LaLonde, Joan Crawford’s grandson, who is
portrayed in Feud although he neither
granted consent nor received any compensation for this portrayal.
The trial court said de Havilland had met her burden under California’s
anti-SLAPP law to show a likelihood of prevailing on her right of publicity
claims “because no compensation was given despite using her name and likeness.”
There was “nothing transformative about [Feud]” because FX admitted it “wanted
to make the appearance of [de Havilland] as real as possible.”  On de Havilland’s false light claim, the
court noted de Havilland asserted (1) she had not given an interview at the
1978 Academy Awards; (2) she had not referred to her sister Joan Fontaine as
“my bitch sister”; (3) she never told a director she didn’t “play bitches” and
he should call her sister; and (4) when asked where the alcohol in Frank
Sinatra’s dressing room had gone, she never said “Frank must have drunk it
all.” A viewer “may think [de Havilland] to be a gossip who uses vulgar terms
about other individuals, including her sister.” The court stated, “For a
celebrity, this could have a significant economic impact.”
Generally, only minimal merit is required to survive an
anti-SLAPP motion. But when the plaintiff is a public figure, as de Havilland
conceded she was, her prima facie case requires clear and convincing evidence
that the defendant acted with “actual malice.” 
[It wasn’t clear to me that the court meant to apply this to the right
of publicity claims too, but it does come as part of the introductory
Right of publicity: First, the court of appeals expressed
uncertainty whether a docudrama constituted a “product or merchandise” within
the meaning of the statutory right of publicity. “Many of the cases in this
area involve products and merchandise such as T-shirts and lithographs,
greeting cards, and video games, or advertisements for products and
merchandise.”  [Images on T-shirts,
lithographs, greeting cards, and video games, of course, are not protected by
the First Amendment any more than beer and cars … oh wait, they are, my bad.]  In the recent Hurt Locker case, the Ninth Circuit noted that the movie was “not
speech proposing a commercial transaction.”  [You know, not like T-shirts, lithographs,
greeting cards, and video games.] 
But the court here didn’t need to decide the issue, because Feud was constitutionally protected in
any event, both for the statutory cause of action and the misappropriation
tort.  “Our courts have often observed
that entertainment is entitled to the same constitutional protection as the
exposition of ideas.” FX didn’t have to buy the rights to use de Havilland’s
name or likeness.  Producers can buy such
rights “for a variety of reasons, including access to the person’s
recollections or ‘story’ the producers would not otherwise have, or a desire to
avoid litigation for a reasonable fee. But the First Amendment simply does not
require such acquisition agreements.”
 De Havilland relied
on Eastwood v. Superior Court, a 1983 California appellate case “which arose
from an unusual set of facts,” in which a tabloid  published an article about the supposed
involvement of famous actor Clint Eastwood in a “love triangle.” Eastwood
alleged the article was entirely false, and the court of appeals allowed him to
proceed with his right of publicity claims. “Here, by contrast, the expressive
work at issue is an eight-hour docudrama of which the de Havilland character is
but a small part. Moreover, as discussed below, the scenes and lines of which
de Havilland complains are permissible literary license and, in any event, not
highly offensive to a reasonable person. Unlike Eastwood, Feud’s creators did
not make out of whole cloth an entirely false ‘article’ for economic gain.”  This is a beautiful example of a set of
statements that identify factual
between the cases, but do not explain why the differences matter to whether the right of publicity
(a distinct tort from defamation/false light) can be violated.  After all, Eastwood was also brought by a man, not a woman, and against a
tabloid, not a TV show—but so what?  This
discussion further strengthens my discomfort with the court’s later treatment
of transformativeness, which suggests that a character who is the focus of a
narrative may have a right of publicity claim even if de Havilland doesn’t.
De Havilland also argued that the fictitious interview “is
structured as an endorsement of [Feud].” The court of appeals disagreed, based
on the content of the miniseries itself. The court found no authority to
support the reasoning that “whenever a filmmaker includes a character based on
a real person, that inclusion implies an ‘endorsement’ of the film or program
by that real person.” Nor did the use of de Havilland’s name and photographs of
Zeta-Jones in advertising for the miniseries support a right of publicity
claim, since the constitutional protection of a publication extends to
advertising for the publication.
Anyway, the portrayal of de Havilland was
transformativeness.  Now here comes some
real nonsense: “Comedy III’s ‘transformative’ test makes sense when applied to
products and merchandise – ‘tangible personal property,’ in the Supreme Court’s
words. Lower courts have struggled mightily, however, to figure out how to
apply it to expressive works such as films, plays, and television programs.”  [Which, as we know, are never instantiated in
tangible personal property, and cannot be reduced to mere merchandise such as
books and DVDs, thus making them unlike the nonexpressive images found on
T-shirts and lithographs.  OK, just
imagine me making Charlie Brown aaaargh noises, because if the court can’t
write a meaningful sentence than neither can I.]  In a footnote, the court notes our amicus
brief expressing doubts about the transformativeness test.
Still, the court of appeals finds that here, the struggle is
not real. The trial court focused on the show’s attempt to create realism as nontransformative, but the court
of appeals found the “imagined” interview in which Zeta-Jones talks about
Hollywood’s treatment of women and the Crawford/Davis rivalry to be “a far cry
from T-shirts depicting a representational, pedestrian, uncreative drawing of
The Three Stooges.”  [On behalf of visual
artists and by extension photographers, not to mention copyright law, let me
express my dismay at this characterization.] 
The court of appeals focused on the fact that the de
Havilland role constituted only about 4.2% of Feud and noted the many other stories the show told, making the
likeness of de Havilland  “one of the
‘raw materials from which [the] original work [Feud] is synthesized.” The
show’s “marketability and economic value” does not “derive primarily from [de
Havilland’s] fame” but rather “comes principally from . . . the creativity,
skill, and reputation” of Feud’s creators and actors.  The court concludes that, “While viewers may
have ‘tuned in’ to see these actors and watch this Hollywood tale, there is no
evidence that de Havilland as a character was a significant draw.” By
implication, it seems, the analysis of Davis and Crawford’s publicity claims
would have to have proceeded differently, and a biopic focusing on a single
person ought to worry, which just goes to show that transformativeness is not a
good test.
The false light claim also failed; false light requires that
the falsity be highly offensive to a reasonable person.  “In light of the actual docudrama itself —
which we have viewed in its entirety — de Havilland cannot meet her burden.” First,
the court questioned whether a reasonable viewer would interpret a docudrama as
entirely factual, rather than as a form in which “scenes, conversations, and
even characters are fictionalized and imagined.” But even assuming the scenes
would be seen as literal statements of actual fact, Feud’s depiction wasn’t
defamatory nor would it “highly offend” a reasonable person.
“Granting an interview at the Academy Awards is not conduct
that would subject a person to hatred, contempt, ridicule, or obloquy.”  Generally, “Zeta-Jones acts as a guide for the
viewer through the tale, a Beatrice to the viewer’s Dante. Zeta-Jones plays de
Havilland as a wise, witty, sometimes playful woman,” characteristics de
Havilland displayed in actual interviews. “Taken in its entirety and in
context, Zeta-Jones’s portrayal of de Havilland is overwhelmingly positive….The
work itself belies de Havilland’s contention that Zeta-Jones portrays de
Havilland as a ‘vulgar gossip’ and ‘hypocrite.’” An offhand remark to de Havilland’s
good friend Bette Davis while they are alone in Sinatra’s dressing room that he
must have drunk the liquor wouldn’t be defamatory or highly offensive to a
reasonable person, given that Sinatra’s fondness for alcohol was well known.
As for the “bitch” remarks, given that de Havilland actually
described her sister as a “dragon lady,” they wouldn’t be highly offensive to a
reasonable person and they were also substantially truthful characterizations
of her actual words.  A statement is not
considered false unless it “would have a different effect on the mind of the
reader from that which the . . . truth would have produced.” The writers
submitted declarations that they used “bitch” instead of “dragon lady” because
the terms had the same meaning but “bitch” would be more recognizable to the
target audience.  The court found that
the effect on the mind of the audience was the same. “We must not permit juries
to dissect the creative process in order to determine what was necessary to
achieve the final product and what was not, and to impose liability . . . for
that portion deemed unnecessary. Creativity is, by its nature, creative.”
Nor could de Havilland prove by clear and convincing
evidence that Feud’s creators acted with actual malice, as required given her
public figure status. De Havilland argued that, because she did not grant an
interview at the 1978 Academy Awards or make the “bitch sister” or “Sinatra
drank the alcohol” remarks to Bette Davis, Feud’s creators acted with actual
malice. “But fiction is by definition untrue. … Publishing a fictitious work
about a real person cannot mean the author, by virtue of writing fiction, has
acted with actual malice.”  Thus, courts
require plaintiffs in cases like this to show that the defendant intended to
convey the defamatory impression, which de Havilland could not do, especially
since liability cannot be imposed for an implication that merely should have
been foreseen. In his sworn declaration, the main creator stated that he
intended Zeta-Jones’s portrayal of de Havilland to be that of “a wise,
respectful friend and counselor to Bette Davis, and a Hollywood icon with a
unique perspective on the past.”
In conclusion, the court of appeals summarized the Catch-22
created by the trial court’s ruling: “If [creators] portray a real person in an
expressive work accurately and realistically without paying that person, they
face a right of publicity lawsuit. [This part of the dilemma is apparently ok
for people who work in static representational art, per Saderup.] 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 trial court was ordered to grant the anti-SLAPP motion and award
defendants their attorney fees and costs.

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