Will the high court hear de Havilland’s case?

FIRST & FOREMOST

Actress Olivia de Havilland has an enviable resume: multiple Academy Awards, memorable roles in films like "Gone with the Wind," membership in the French Legion of Honour, and Dame Commander status in the Order of the British Empire. She also helped to bring down Hollywood's studio system through her lawsuit against Warner Bros. in the 1940s. Even now, California's "seven-year rule" for personal services contracts is sometimes referred to as the "de Havilland rule." Now 102 years old, de Havilland seeks to leave yet another mark on the entertainment and legal landscape. She has petitioned the United States Supreme Court for review of a 2018 California Court of Appeal decision striking her claims against FX Networks and others arising from her portrayal in the critically-acclaimed miniseries "Feud: Bette and Joan." A decision from the Supreme Court whether to grant review is expected in early 2019.

In 2017, de Havilland sued FX Networks and others for violation of her common law and statutory rights of publicity and false light invasion of privacy. She asserted that she had not consented to the miniseries' use of her name, identity or image, and that her portrayal placed her in a false light by, among other things, showing her calling her sister, the actress Joan Fontaine, a "bitch" when, in fact, de Havilland had called her a "dragon lady." Defendants moved to strike de Havilland's claims under California's anti-SLAPP statute, Code of Civil Procedure Section 425.16.

To the surprise of many legal observers, the trial court denied the anti-SLAPP motion. The court held that although the anti-SLAPP statute applied to de Havilland's claims, she had succeeded in demonstrating a probability of prevailing on them. The court relied substantially on a declaration claiming that it was standard practice in the entertainment industry to pay someone whose name or likeness is used in a creative work. And the court held that the miniseries' use of de Havilland's name and identity was not sufficiently "transformative" to receive First Amendment protection under the transformative use test from Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001).

Defendants appealed and the Court of Appeal reversed in De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 870-71 (2018). The court held that the First Amendment barred all of de Havilland's claims. With respect to her right of publicity claims, the court relied on the California Supreme Court's decision in Gugliemi v. Spelling-Goldberg Productions, 25 Cal. 3d 860 (1979), where the court had rejected similar claims brought by Rudolph Valentino's heir in response to a fictionalized television version of the late actor's life.

The Court of Appeal also rejected the trial court's conclusion that industry practice required payment by defendants for use of de Havilland's name and likeness. The court explained: "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." Id. at 861. That conclusion is sensible. If individuals could "veto" their depictions in creative works, then society would lose out on complex and critical works examining the lives and influence of the rich, famous and powerful, and be left with only one-sided, hagiographic portrayals. The Court of Appeal also found that to the extent that the "transformative use" test applied to de Havilland's right of publicity claims, it was satisfied. De Havilland's name and identity were simply one of many raw materials from which "Feud: Bette and Joan" was created, and the miniseries' success did not primarily derive from de Havilland's fame but from the inventiveness and skill of the miniseries' creators and actors.

In a passage of particular interest, the court noted that while Comedy III's transformative use test "makes sense when applied to products and merchandise ... [l]ower courts have struggled mightily, however, to figure out how to apply it to expressive works such as films, plays and television programs." Id. at 863. That point is well-taken. Transformative use might be a useful analytical tool when addressing T-shirts bearing conventional depictions of famous people, as in Comedy III. But the transformative use test is ill-suited for analyzing how to balance state rights of publicity against First Amendment rights in creative works. On that score, courts would do better to look to the 9th U.S. Circuit Court of Appeals' decision in Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016). There, the court eschewed the half dozen-plus legal tests across the country for balancing rights of publicity against the First Amendment (of which transformative use is one). Instead, the court relied on a first principle of First Amendment law: content-based restrictions on creative works, including right of publicity laws, are subject to strict scrutiny. For the vast majority of right of publicity claims targeting expressive works, strict scrutiny will be fatal, in keeping with the special position that First Amendment rights have in this country.

With respect to the false light claim, the Court of Appeal held that the allegedly actionable statements were not highly offensive to a reasonable person, particularly given the miniseries' overall positive portrayal of de Havilland. The court also held that the scene showing de Havilland calling her sister Joan Fontaine a "bitch" was substantially true based on de Havilland's admittedly having referred to her sister as a "dragon lady." Finally, the court held that de Havilland had failed to demonstrate the requisite actual malice, i.e., that the defendants intended to convey a defamatory impression of de Havilland.

De Havilland subsequently sought review from the California Supreme Court, which declined to hear her case. De Havilland then filed her petition for certiorari to the United States Supreme Court.

So, is the Supreme Court likely to grant review? The answer is likely "no." Although de Havilland's case is attention-grabbing as it involves an Academy Award-winning legend and a critically acclaimed miniseries about Hollywood's Golden Age, the case lacks the sort of clean, outcome-determinative legal issues that more readily lend themselves to Supreme Court review. Although there is a potentially interesting issue regarding the application of the actual malice standard to docudramas, actual malice was only one of a number of reasons why the Court of Appeal rejected de Havilland's false light claim. With respect to de Havilland's right of publicity claims, the Supreme Court last ruled on a right-of-publicity case nearly 40 years ago, notwithstanding decades of ensuing circuit splits and countless petitions for certiorari. I've previously argued in these pages that the existing patchwork of state right of publicity laws and conflicting legal standards has created a mess that the Supreme Court should address. However, de Havilland's case seems like a poor vehicle for such an undertaking.