Right of publicity not a right to control one's own image by censoring disagreeable portrayals, says appeals court in de Havilland case

Olivia de Havilland
Does one have the power to control how his/her own image is portrayed? To what extent do third parties’ free speech rights prevail over the rights of the person portrayed?

These, in a nutshell, have been the core issues at the centre of the important lawsuit initially brought by 101 year-old actor Olivia de Havilland (who famously starred alongside Vivien Leigh and Clark Gable in Gone with the Wind) against FX, the producers of TV miniseries Feud: Bette and Joan. Although the latter focused on the rivalry between film stars Bette David and Joan Crawford, there is also Catherine Zeta-Jones playing Olivia de Havilland, a close friend of Bette Davis.


Olivia de Havilland sued FX in 2017, claiming violation of her statutory right of publicity – California Civil Code section 3344 – and the common law tort of misappropriation (on grounds that de Havilland had not granted FX any permission to use her name, identity or image), as well as false light invasion of privacy (due to the fact that in the TV series her character calls her sister a ‘bitch’, when in fact the term used was ‘dragon lady’).

California Civil Code section 3344(a) states that:

Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of,products, merchandise, goods or services, without such person's prior consent […] shall be liable for any damages sustained by the person or persons injured as a result thereof. […]” (emphasis added)

The Superior Court of Los Angeles County held (BC667011) that, because Feud tried to portray de Havilland as realistically as possible, it was not ‘transformative’ and therefore not eligible for protection under the First Amendment to the US Constitution.

The decision was appealed to Court of Appeal of the State of California - Second Appellate District, which yesterday decided to reverse the lower court’s order [the case is Olivia de Havilland v FX Networks, LLC et al, B285629].

Catherine Zeta-Jones
as Olivia de Havilland
Does section 3344 apply to a film?

Starting its substantial analysis from the right of publicity, the Court of Appeal had to determine whether the portrayal of a real person in a creative work constitutes “use” of that persons’ name or likeness “on or in” a product, merchandise or good. 

In its recent decision in Sarver (concerning the portrayal of a US Army sergeant in The Hurt Locker) the 9th Circuit had answered this point in the negative.

Even assuming that Feud was a ‘product, merchandise, or good', and that Zeta-Jones’s portrayal of de Havilland was ‘use’ of her name or likeness within section 3344 of the California Civil Code, the First Amendment would protect the film, said the Court. 

The appellate court recalled in fact the 1979 decision of the California Supreme Court in Guglielmi, a case concerning a TV programme that was a ‘fictionalized version’ of Rudolph Valentino’s life (Valentino had died years earlier). The case was dismissed on ground that, at the time, the right of publicity could not be transmitted mortis causa. In a concurring opining the Chief Justice (joined by three other justices) held that a work made for entertainment enjoys the same constitutional protection as the exposition of ideas. This means that that truthful and fictional accounts are subject to the same treatment. The Guglielmi decision has been cited with approval in many subsequent decisions.

First Amendment protection

The Court of Appeal thus held that Feud is entitled to First Amendment protection, and deemed it irrelevant to such conclusion the fact that its creators did not purchase or otherwise procure de Havilland’s rights to her name or likeness. While there might be various reasons for one to seek to clear such rights, “the First Amendment simply does not require such acquisition agreements”.  

The Court also dismissed all other de Havilland’s claims, and concluded – citing with approval Comedy III – that “[T]he right of publicity cannot, consistent with First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals.”


While de Havilland's attorneys have already announced that they will appeal the ruling, unsurprisingly filmmakers and film studios have welcomed the outcome of this case, with MPAA stating that the decision "represents a major legal victory for filmmakers and creators of all kinds, re-affirming their First Amendment right to tell stories about and inspired by real people and events in genres including docudramas, biopics, historical fiction, and documentaries [...] It’s this right that has allowed filmmakers to make movies from ‘Citizen Kane’ to ‘The Devil Wears Prada’ to ‘Primary Colors’ to ‘The Social Network’ to ‘Hidden Figures,’ among countless others."

The outcome seems reasonable, also considering the nuances added by the court in its analysis. 

The right of publicity is not, however, the only IP issue that might come on the way of creators of docudramas, biopics, etc. 

IPKat readers may for instance recalls instances in which copyright has also played a significant role, sometimes up to the point of compelling filmakers to 're-write' history. For instance critically acclaimed Selma, a film about Rev Dr Martin Luther King Jr starring David Oyelowo, does not really contain the exact words pronounced by King. For instance, during the scene at the funeral of civil rights demonstrator Jimmie Lee Jackson Oyelowo/King gives a rousing oratory, asking the crowd, "Who murdered Jimmie Lee Jackson?". In real life, King asked, "Who killed him?". In another scene, Oyelowo/King rallies protestors with the words, "Give us the vote," while in reality King said, "Give us the ballot." The reason for this is that "Dr. King’s heirs did not grant permission for his speeches to be quoted in “Selma,” and while this may be a blow to the film’s authenticity, [the film director] turns it into an advantage, a chance to see and hear him afresh." [On copyright restrictions and fair use see further this IPKat post]

To be (likely) continued ...
Right of publicity not a right to control one's own image by censoring disagreeable portrayals, says appeals court in de Havilland case Right of publicity not a right to control one's own image by censoring disagreeable portrayals, says appeals court in de Havilland case Reviewed by Eleonora Rosati on Tuesday, March 27, 2018 Rating: 5

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