Olivia de Havilland
will celebrate her 102nd birthday on July 1.  She was famous as an actor, starring in such films as Gone With the Wind and winning two Academy Awards (losing a third one to her sister, Joan Fontaine).

Among lawyers, though, she was perhaps most famous for her role as the plaintiff in de Havilland v. Warner Bros.  That case held that performers may not be bound to a contract for a period longer than the statutory limit of seven years, even if the performer was “suspended” under the contract for failure to perform for some of that time.

After a long and very successful career, and after winning crucial rights for California performers in court, Ms. de Havilland’s luck (at least in court) seems to have run out.

In 2017, FX aired an eight-part docudrama titled “Feud: Bette and Joan”, focusing on Joan Crawford and Bette Davis.  Catherine Zeta-Jones portrayed de Havilland, appearing in only 17 minutes (4.3%) of the 392-minute miniseries.  Three months after the release of the docudrama, Ms. de Havilland sued FX.  Her claims were technically for “misappropriation”, a violation of California’s statutory right of publicity, false light invasion of privacy, and “unjust enrichment”. However denominated, the claims really boil down to a desire to get paid for the use of her image and the fictionalization of details of her life.  She also sought to permanently enjoin the broadcast and distribution of the film.  Because of her advanced age, the court expedited the case.

The case came on appeal of denial of an anti-SLAPP motion.  An anti-SLAPP motion is designed to generate a quick resolution of a lawsuit intended to chill speech and is described in Section 425.16 of California’s Code of Civil Procedure.

It is important to note (as we have previously in this blog) that one way to identify important cases is to look at the people and entities who file friend of the court briefs.  In this case, content producers from Netflix to the MPAA, a group of intellectual property law professors, Wikimedia, and the International Documentary Association, among others, sided with FX.  By contrast, only the Screen Actors Guilt/American Federation of Television and Radio Artists filed a brief siding with de Havilland.  The interest in interpreting the First Amendment to protect documentaries and semi-documentaries had far more support than did the interest in prohibiting documentaries and semi-documentaries where at least one of the subjects has not been paid for her participation.

In a March 26, 2018 decision, the California Court of Appeals issued what can only be characterized as a firm slapdown of this attempt to diminish the First Amendment.  The case opens with a passage that could have constituted the entire opinion:

Authors write books. Filmmakers make films. Playwrights craft plays. And television writers, directors, and producers create television shows and put them on the air — or, in these modern times, online. The First Amendment protects these expressive works and the free speech rights of their creators. Some of these works are fiction. Some are factual. And some are a combination of fact and fiction. That these creative works generate income for their creators does not diminish their constitutional protection. The First Amendment does not require authors, filmmakers, playwrights, and television producers to provide their creations to the public at no charge.

Books, films, plays, and television shows often portray real people. Some are famous and some are just ordinary folks. Whether a person portrayed in one of these expressive works is a world-renowned film star — “a living legend” — or a person no one knows, she or he does not own history. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.

The Court goes on slap down the trial court, pointing out that a key point in the trial court’s decision in favor of de Havilland was that FX “tried to portray de Havilland as realistically as possible,” making the program not sufficiently transformative to merit First Amendment protection. The Court finds this precisely inapposite to what the First Amendment requires.  It finds dead wrong the lower court’s holding that “the more realistic the portrayal [of the plaintiff in the show], the more actionable the expressive work would be.”

Adding intrigue (or uncertainty, as lawyers will bemoan) to the Right of Publicity law, the Court states that “We question whether a docudrama is a product or merchandise within the meaning of CivilCode section 3344 [the right of publicity].”  The opinion clearly leans in favor of finding that it is not (although at least some video games, which are capable of being interactive dramas, seem to be covered by the Right of Publicity under Davis v. Electronic Arts).

The Court went on to find that the First Amendment defense is not impaired merely because the docudrama was intended as a commercial product.  In the key (financial) passage, the Court went on to hold that the First Amendment does not require payment in order to tell a story about somebody:

That Feud’s creators did not purchase or otherwise procure de Havilland’s “rights” to her name or likeness does not change this analysis. Producers of films and television programs may enter into agreements with individuals portrayed in those works 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.

Perhaps the most fascinating part of the decision is that the Court of Appeals states several times that, in essence, they need go no further because de Havilland based on the analysis to that point.  Despite those statements, the Court continues, finding even more such “you lose but we’ll go on anyhow” points.  Trying to get inside of a judge’s head is a fool’s errand, but the Court’s animated (and breakneck speed) decision speaks to the importance of this case, and this holding, to the Court.

It is unknown at this time whether de Havilland will appeal to the California Supreme Court.