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 discussion.]

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 differences 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.