Entertainment >> Right Of Publicity And The Rise Of True Crime

Author:Mr James Johnston, Josh J. Gordon and Samantha G. Rothaus
Profession:Davis & Gilbert

Among the many high-profile entertainment industry headlines in 2018, one case in particular stands out for its impact on the rising trend of "true crime" entertainment. Olivia de Havilland, a leading lady during Hollywood's "Golden Age," sued FX Networks and producer Ryan Murphy, alleging her unauthorized portrayal in the show Feud: Bette and Joan violated her right of publicity and portrayed her in a false light. After conflicting decisions from the lower court and appellate court, de Havilland, now 102, filed a petition for certiorari in late 2018, seeking to bring her case before the U.S. Supreme Court. However, her petition was denied and, consequently, the decision of the California Court of Appeals still stands.

The California Court of Appeals found that FX and Murphy were not required to obtain de Havilland's permission, and that the First Amendment protected FX and Murphy from the actress's claims. The Court noted, "[w]hether a person portrayed in ... 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's false light claims were similarly rejected because the court did not find actual malice present in the nature of her portrayal in the show. The Court concluded its decision by noting that de Havilland's position would put "authors, filmmakers, playwrights, and television producers in a Catch-22. 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." This result would have a chilling effect on the exercise of First Amendment rights by artists and filmmakers.


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