Tuesday, March 27, 2018
A California appellate court has tossed Olivia de Havilland's lawsuit against FX and writer Ryan Murphy alleging that they portrayed her in a false light and infringed her right of publicity by using her life story in the series "Feud." Wrote the court in part,
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....De Havilland alleges causes of action for violation of the statutory right of publicity and the common law tort of misappropriation. De Havilland grounds her claims on her assertion -- which FX does not dispute -- that she “did not give [her] permission to the creators of ‘Feud’ to use [her] name, identity[,] or image in any manner.” De Havilland also sues for 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.” De Havilland seeks to enjoin the distribution and broadcast of the television program and to recover money damages. The trial court denied FX’s special motion to strike the complaint. The court concluded that, because Feud tried to portray de Havilland as realistically as possible, the program was not “transformative” under Comedy III Productions and therefore not entitled to First Amendment protection. As appellants and numerous amici point out, this reasoning would render actionable all books, films, plays, and television programs that accurately portray real people. Indeed, the more realistic the portrayal, the more actionable the expressive work would be. The First Amendment does not permit this result. We reverse.
Jennifer Rothman discusses the ruling here.