Tuesday, March 27, 2018
Page 1
Court of Appeal:
Anti-SLAPP Motion Must Be Granted In Action by Olivia de Havilland
Unauthorized Portrayal in Docudrama Held to Be Protected
By a MetNews Staff Writer
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OLIVIA DE HAVILLAND |
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Circa 1945 |
March 2018 |
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Olivia de Havilland, a 102-year-old who was a major star of the late 1930s through the 1940s, yesterday lost her bout in the Court of Appeal over FX’s unauthorized depiction of her in the eight-part docudrama, “Feud: Bette and Joan,” centering on deceased actresses Bette Davis and Joan Crawford.
Justice Anne H. Egerton wrote the opinion for this district’s Div. Three reversing Los Angeles Superior Court Judge Holly E. Kendig’s denial of the defendant’s anti-SLAPP motion.
Egerton declared:
“Books, films, plays, and television shows often portray real people. Some are famous and some are just ordinary folks. 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—who portrayed Melanie in Gone With the Wind— sued for violation of her statutory right of publicity, for common law misappropriation, false light invasion of privacy, and unjust enrichment.
Kendig derived guidance from the California Supreme Court’s 2001 decision in Comedy III Productions, Inc. v. Gary Saderup, Inc. There, proprietors of the publicity rights of the Three Stooges, who are all dead, sued an artist over sales of tee-shirts depicting drawings of the slapstick comics.
Mosk’s Opinion
Writing for a unanimous court, Justice Stanley Mosk (since deceased) said:
“When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist.”
He went on to declare:
“When the value of the work comes principally from some source other than the fame of the celebrity—from the creativity, skill, and reputation of the artist—it may be presumed that sufficient transformative elements are present to warrant First Amendment protection.”
Mosk said the artist’s “undeniable skill is manifestly subordinated to the overall goal of creating literal, conventional depictions of The Three Stooges so as to exploit their fame,” and that if the drawings “were protected by the First Amendment, we cannot perceive how the right of publicity would remain a viable right other than in cases of falsified celebrity endorsements.”
Kendig’s Ruling
Kendig found that under Comedy III, the effort to portray de Havilland accurately foreclosed the contention that the authorized use of her as a character in the film was protected.
Disagreeing, Egerton wrote that Kendig’s broad application of the holding in that case “would render actionable all books, films, plays, and television programs that accurately portray real people.”
She commented:
“Indeed, the more realistic the portrayal, the more actionable the expressive work would be. The First Amendment does not permit this result.”
Fictional Interview
De Havilland was portrayed in the docudrama by Catherine Zeta-Jones. In one segment, she is depicted as being interviewed at the 1978 Academy Awards presentation (an interview that did not take place).
Egerton observed:
“The fictitious, ‘imagined’ interview in which Zeta-Jones talks about Hollywood’s treatment of women and the Crawford/Davis rivalry is a far cry from T-shirts depicting a representational, pedestrian, uncreative drawing of The Three Stooges….
“[W]e conclude as a matter of law that Feud’s ‘marketability and economic value’ does not ‘derive primarily from [de Havilland’s] fame’ but rather ‘comes principally from...the creativity, skill, and reputation’ of Feud’s creators and actors.”
Kendig’s ruling “leaves authors, filmmakers, playwrights, and television producers in a Catch-22,” Egerton said, explaining:
“If they portray a real person in an expressive work accurately and realistically without paying that person, they face a right of publicity lawsuit. If they portray a real person in an expressive work in a fanciful, imaginative—even fictitious and therefore ‘false’—way, they face a false light lawsuit if the person portrayed does not like the portrayal.”
Bird Opinion
Egerton pointed to the 1979 California Supreme Court decision in Guglielmi v. Spelling-Goldberg Productions which concerned use of Rudolph Valentino Chief Justice Rose Bird (now deceased) wrote:
“Valentino was a Hollywood star. His life and career are part of the cultural history of an era....His lingering persona is an apt topic for poetry or song, biography or fiction. Whether [the producers’] work constitutes a serious appraisal of Valentino’s stature or mere fantasy is a judgment left to the reader or viewer, not the courts.”
Egerton commented:
“In the nearly four decades since, our Supreme Court and courts of appeal have continued to cite Guglielmi with approval.”
As to the allegation of statements being falsely attributed to her, such as an allusion to Frank Sinatra’s drinking, Egerton said that most viewers would not suppose absolute accuracy in a semi-fictional depiction and that, in any event, the impressions created were not particularly harmful.
The case is de Havilland v. FX Networks, LLC, B285629.
Copyright 2018, Metropolitan News Company