From the Three Stooges to Olivia de Havilland

"Celebrity," John Updike wrote, "is a mask that eats into the face." Just as Updike suggested celebrity changes and damages human beings, courts have allowed the right of publicity to etch itself into the First Amendment in their eagerness to reward celebrities for the power of their "images" and to prevent other people from exploiting those images.

In California, the right of publicity expansively grants celebrities the right to control exploitations of their names, likenesses, voices and other aspects of their identities in any form that those identities are evoked. California has also not limited the coverage of its right of publicity to advertising and similar uses for the purpose of trade, as some other states have done. The result has been lawsuits such as Olivia de Havilland's claim against the FX show "Feud," in which Catherine Zeta-Jones played the Olivia de Havilland character as a commentator on the legendary feud between Bette Davis and Joan Crawford.

Initially, the trial court applied the "transformativeness" test to determine whether FX's show was protected by the First Amendment from the right of publicity claim. First used in a case involving sketches of the Three Stooges, the transformativeness test is supposed to distinguish between artworks that add something to the celebrity portrayal -- using the celebrity's identity as raw material for new expression -- and artworks that are merely representations of the celebrity; the latter are not protected against right of publicity claims.

Aside from discriminating against realistic media such as photographs, realistic drawings and realistic video games, the transformativeness test has invited confusion and suppression of artistic works. In the "Feud" case, for example, the trial court held that, because "Feud" was supposedly a realistic portrayal of the historical de Havilland, its depiction of her was not transformative, and her right of publicity claim could proceed.

If realism and "transformation" are opposed, however, then biographies and other forms of reporting on the truth will be vulnerable to celebrity control. I joined with other academics in an amicus brief supporting reversal of the trial court's decision, and fortunately the California Court of Appeal recently reversed the decision. De Havilland v. FX Networks, LLC, 2018 DJDAR 2778 (March 26, 2018). Its own reasoning, however, hardly cleared up the issue for future creators.

The Court of Appeal pronounced that, even though "Feud" was produced by a for-profit television studio, "[t]he First Amendment does not require authors, filmmakers, playwrights, and television producers to provide their creations to the public at no charge." However, the same does not appear to be true for lithographers, greeting card artists, and video game designers, whose works were excluded from the categories of "expressive" works the court was willing to protect. Thus, the Court of Appeal identified the FX series as transformative and as "a far cry from T-shirts depicting a representational, pedestrian, uncreative drawing of The Three Stooges." But the only thing that made the lithograph in the Three Stooges "pedestrian" and "uncreative," it seems, was the fact that it was "representational," like many a photograph (not to mention many a biography or docudrama).

Worse, the Court of Appeal emphasized the fact that the de Havilland role constituted only about 4.2 percent 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 court concluded 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 the producers of a biopic focusing on a single person ought to worry -- as well as the editors of a news story about a single person.

One might respond that "newsworthiness" will provide a separate barrier to right of publicity claims against a news story or a photograph. But as long as the Three Stooges remain culturally relevant, it shouldn't matter that their fame is no longer that of Kim Kardashian. As long as California applies its right of publicity law outside of commercial speech like advertisements and other instances of false commercial endorsement, it will threaten the freedom of artists to depict the world that surrounds and influences them. Or maybe this threat will continue to be limited to visual artists and video game designers -- but as the de Havilland trial court's initial opinion demonstrates, that dividing line makes no sense; we should treat "realistic" drawings and video games the same way we treat "realistic" television shows. For the right of publicity, that ought to mean giving all our artists freedom to make nondefamatory portrayals.