US Supreme Court rejects long-running lawsuit by De Havilland

A right of publicity case media attorneys warned would be a "nuclear bomb" for the entertainment industry was permanently disarmed by the U.S. Supreme Court Monday.

The high court declined to hear the case filed by centenarian actress Olivia de Havilland over her portrayal on the FX Networks series "Feud: Bette and Joan" and did not offer further explanation. As the California Supreme Court previously declined to hear the case, a 2nd Appellate District panel's thorough rebuke of the actress's claims will remain the prevailing opinion in the case.

A fictionalized version of de Havilland, played by actress Catherine Zeta-Jones, is featured briefly as part of the eight-part docudrama, which aired a few months ahead of the June 2017 filing. Among other claims, de Havilland argued the characterization violated her right of publicity, as she hadn't given her permission to the show's creators ahead of the portrayal, and unjustly portrayed her in a false light. de Havilland v. FX Networks LLC, B285629 (L.A. Super., filed June 7, 2017).

Los Angeles Superior Court Judge Holly Kendig sided with de Havilland and denied FX's anti-SLAPP motion in September 2017, reasoning de Havilland plead sufficiently to move the case towards trial. The ruling sent shockwaves throughout the entertainment industry, said Lincoln Bandlow, a First Amendment attorney and partner at Fox Rothschild LLP who has closely tracked the case.

Bandlow said the trial court decision relied on declarations from "a few purported Hollywood experts" who testified no work can be done without obtaining the permission of everyone depicted, which conflicts with decades of already-established right of publicity law. Had the decision been upheld, Bandlow said it would have had a severe creative chilling effect.

By the time the appeals court held its hearing, Bandlow said it received numerous amicus briefs from media groups across the industry, all wholly opposed to the lower court ruling.

"For a little while, it was as if a nuclear bomb had been dropped on the creative world," Bandlow said.

But the ruling proved to be a blessing in disguise, he said, as it set the stage for the appeals court decision. Noting it was authored by Justice Anne H. Egerton -- who formerly served as general counsel for NBC -- Bandlow said the decision "says all the right things" while dismissing a host of common arguments made by plaintiffs in these kind of cases.

"Books, films, plays, and television shows often portray real people. Some are famous and some are just ordinary folks," Egerton wrote in the panel's opinion. "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."

If you gave media defense lawyers an opportunity to write an opinion in a case of this nature, "This is the opinion they would have written," Bandlow said.

"It's one of the best First Amendment decisions on rights of publicity out there," he added.

While the high court's rejection wasn't altogether unexpected, Bandlow said it's still cause for celebration among media groups.

A statement from de Havilland's attorneys Suzelle M. Smith and Don Howarth of Howarth & Smith expressed disappointment with the result, accusing the show's creators of hiding behind the First Amendment to justify "the publication of intentional lies."

"Miss de Havilland hopes she will live to see the day when justice is done," the firm wrote in its statement.