De Havilland v. FX Networks, LLC
21 Cal. App. 5th 845
| Cal. Ct. App. 5th | 2018Background
- FX aired an eight-episode docudrama, Feud: Bette and Joan, portraying the rivalry between Bette Davis and Joan Crawford; Catherine Zeta-Jones plays Olivia de Havilland in a limited role (~17 minutes).
- De Havilland sued FX for: common-law misappropriation, violation of Cal. Civil Code §3344 (right of publicity), false light invasion of privacy, and unjust enrichment, seeking damages and an injunction.
- FX moved to strike under California's anti-SLAPP statute (§425.16), arguing the series is protected speech on a matter of public interest and submitted writers’ declarations explaining use of dramatized/imagined interviews as a framing device.
- The trial court denied FX’s anti-SLAPP motion, concluding Feud was not transformative (citing Comedy III), that no compensation was paid, and that plaintiffs showed sufficient proof of falsity and actual malice to survive under the heightened standard for public figures.
- On appeal, the court considered whether expressive uses of real people in a docudrama are protected by the First Amendment and whether Feud’s portrayal was transformative or otherwise constitutionally privileged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether portrayal in Feud violates right of publicity / misappropriation | De Havilland: FX used her name/likeness without consent for commercial gain; industry custom requires clearance | FX: Feud is an expressive work on a public matter; First Amendment protects depiction of real persons in works of drama/history | Reversed: First Amendment protects Feud; right of publicity cannot censor portrayals; anti-SLAPP motion should be granted |
| Whether Feud is a "transformative" use under Comedy III | De Havilland: FX admitted they sought realistic appearance, so not transformative | FX: Feud synthesizes many elements and adds significant original expression; de Havilland is a minor element | Feud is transformative as a matter of law; marketability derives from creators, story, and cast, not de Havilland's fame |
| Whether the challenged scenes give rise to a viable false light claim | De Havilland: Fictionalized interview and lines (e.g., "bitch sister", Sinatra remark) create false impressions and harm reputation; actual malice shown | FX: Docudrama form, context, and limited screen time mean viewers understand dramatization; lines are non-defamatory, substantially true, or permissible literary license; no actual malice | De Havilland failed to show a probability of prevailing: scenes are not highly offensive/defamatory as a matter of law and she cannot prove actual malice by clear and convincing evidence |
| Whether unjust enrichment claim stands | De Havilland: FX derived profits from unauthorized use of her identity | FX: Unjust enrichment is not an independent cause of action and depends on a viable underlying wrong | Dismissed: Unjust enrichment fails because underlying publicity/false-light claims fail |
Key Cases Cited
- Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (Cal. 2001) (articulated transformative-use test for publicity claims)
- Guglielmi v. Spelling-Goldberg Prods., 25 Cal.3d 860 (Cal. 1979) (fictionalized portrayals of real persons entitled to First Amendment protection)
- Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016) (film portraying real-life experiences is protected speech; anti-SLAPP dismissal affirmed)
- Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (U.S. 1977) (limited Supreme Court recognition of publicity claim where entire act was broadcast)
- Winter v. DC Comics, 30 Cal.4th 881 (Cal. 2003) (First Amendment protections for expressive works involving real persons)
- Masson v. New Yorker Magazine, 501 U.S. 496 (U.S. 1991) (substantial truth doctrine and context matters for quotations and alleged falsity)