De Havilland v. FX Networks, LLCAnnotate this Case
The First Amendment protects FX's portrayal of Olivia de Havilland in a docudrama without her permission. De Havilland filed suit against FX and the creators and producers of the television miniseries Feud: Bette and Joan, alleging causes of action for violation of the statutory right of publicity and the common law tort of misappropriation. De Havilland also alleged claims of false light invasion of privacy based on FX's portrayal in the docudrama of a fictitious interview and the de Havilland character's reference to her sister as a "bitch" when in fact the term she used was "dragon lady." The Court of Appeal reversed the trial court's order denying FX's special motion to strike under California's anti-SLAPP statute. The court held that, assuming a docudrama was a "use" for purposes of the right of publicity, Feud was speech that was 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 transformed them into art, be it articles, books, movies, or plays. Furthermore, the fact that Feud's creators did not purchase or otherwise procure de Havilland's "right" to her name or likeness did not change the analysis. In this case, Feud's portrayal of de Havilland was transformative. The court also held that de Havilland failed to carry her burden of proving with admissible evidence that she will probably prevail on her false light claim, and thus de Havilland's cause of action for unjust enrichment also failed.