Petition for Writ of Certiorari — Olivia de Havilland, Petitioner v. FX Networks, LLC, et al.
Supreme Court briefOct 5, 2018
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No. 18In the
Supreme Court of the United States
OLIVIA DE HAVILLAND, DBE,
Petitioner,
v.
FX NETWORKS, LLC and PACIFIC 2.1
ENTERTAINMENT GROUP, INC.,
Respondents.
On Petition for a Writ of Certiorari to the
California Court of A ppeals, Second District
PETITION FOR A WRIT OF CERTIORARI
Suzelle M. Smith
Counsel of Record
Don Howarth
Howarth & Smith
523 West Sixth Street, Suite 728
Los Angeles, California 90014
(213) 955-9400
ssmith@howarth-smith.com
Counsel for Petitioner
283824
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
Olivia de Havilland is a 102-year-old, two-time
Academy Award winning best actress, who played Melanie
Hamilton in the movie classic, “Gone with the Wind.” Of
particular relevance here, she is also a woman who lives
her life devoted to high moral and ethical standards.
FX Networks, LLC and Pacific 2.1 Entertainment
Group, Inc. appropriated the literal name and identity
of Olivia de Havilland, without consent or compensation,
to be the narrator of a mini-series, “Feud: Bette and
Joan,” devoted to the theme of women actors catfighting, using vulgar language, and backstabbing one
another. FX, claiming artistic license, admits that many
of the statements and vulgar language attributed to de
Havilland were fabricated and knowingly untrue.
The California Court of Appeal reversed the trial
judge’s denial of a Motion to Strike, and dismissed Miss de
Havilland’s claims, based on a First Amendment defense
for docudramas.
The Question for the Court is:
Are reckless or knowing false statements about
a living public figure, published in docudrama
format, entitled to absolute First Amendment
protection from claims based on the victim’s
statutory and common law causes of action for
defamation and right of publicity, so as to justify
dismissal at the pleading stage?
ii
PARTIES TO THE PROCEEDINGS
Petitioner, Plaintiff and Appellee below, is Miss Olivia
de Havilland, an individual (“Petitioner” or “Miss de
Havilland”).
Respondents, Defendants and Appellants below, are
FX Networks, LLC, a cable network company registered
as a limited liability company in the State of California,
and Pacific 2.1 Entertainment Group, Inc., a production
company incorporated in the State of California (“FX,”
“FX Respondents,” or “Respondents”).
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi
DECISIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1
PERT INEN T CONSTI T U T IONA L A N D
STATUTORY PROVISIONS . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3
A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 3
B. State Court Proceedings . . . . . . . . . . . . . . . . . . . . 9
REASONS FOR GRANTING THE PETITION . . . . 13
I.
The First Amendment Does Not Grant
Absolute Immunity to Docudramas Which
Harm Living Persons by Publishing
Known or Reckless Falsehoods . . . . . . . . . . . . . 13
iv
Table of Contents
Page
A. The California Court of Appeal’s
Reasoning Conflicts with the Limited
First A mendment Protection for
Publication of Falsehoods this Court Has
Repeatedly Enunciated . . . . . . . . . . . . . . . . 13
B. The New First Amendment Rule for
Docudramas Conflicts with Holdings of
Other Courts . . . . . . . . . . . . . . . . . . . . . . . . . 17
II. Olivia de Havilland’s Case Should Be
Reviewed by This Court Because It
Involves an Important Constitutional
Issue Which Affects Thousands of Public
Figures and Private Persons Who May
Be Involved in Public Issues . . . . . . . . . . . . . . . . 18
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
v
TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION OF T H E
COURT OF APPEAL OF THE STATE OF
CA LIFORNIA, SECOND A PPELLATE
DISTRICT, DIVISION THREE, FILED
MARCH 26, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
A P P E N D I X B — RU L I N G O F T H E
SUPERIOR COURT OF THE STATE OF
CALIFORNIA FOR THE COUNTY OF LOS
ANGELES, FILED SEPTEMBER 29, 2017 . . . . 41a
APPENDIX C — DENIAL OF PETITION
FOR REVIEW OF THE SUPREME COURT
OF CALIFORNIA, FILED JULY 11, 2018 . . . . . 75a
vi
TABLE OF CITED AUTHORITIES
Page
Cases
BE & K Constr. Co. v. NLRB,
536 U.S. 516 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Bill Johnson’s Restaurants, Inc. v. NLRB,
461 U.S. 731 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Brown v. Hartlage,
456 U.S. 45 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Browne v McCain,
611 F. Supp. 2d 1062 (C.D. Cal. 2009) . . . . . . . . . . . . 16
Comedy III Prods., Inc. v. Gary Saderup, Inc.,
25 Cal.4th 387 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Curtis Pub. Co. v. Butts,
388 U.S. 130 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Davis v. Cox,
183 Wash. 2d 269 (2015) . . . . . . . . . . . . . . . . . . . . . . . 12
De Havilland v. FX Networks, LLC,
21 Cal. App. 5th 845 (2018) . . . . . . . . . . . . . . . . . . . . . . 1
Eastwood v. Superior Court,
149 Cal. App. 3d 409 (1983) . . . . . . . . . . . . . . . . . . . . . 3
vii
Cited Authorities
Page
Foretich v. Capital Cities/ABC, Inc.,
37 F.3d 1541 (4th Cir. 1994) . . . . . . . . . . . . . . . . . . . . 17
Garrison v. Louisiana,
379 U.S. 64 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) . . . . . . . . . . . . . . . . . . . . . 13, 14, 15
Guglielmi v. Spelling-Goldberg Prods.,
25 Cal.3d 860 (1979) . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Herbert v. Lando,
441 U.S. 153 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Illinois ex rel. Madigan v.
Telemarketing Associates, Inc.,
538 U.S. 600 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Keeton v. Hustler Magazine, Inc.,
465 U.S. 770 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Masson v. New Yorker Magazine, Inc.,
501 U.S. 496 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 16, 19
Masterpiece Cakeshop, Ltd. v.
Colorado Civil Rights Comm’n,
138 S.Ct. 1719 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
viii
Cited Authorities
Page
Maytown Sand & Gravel, LLC v. Thurston Cty.,
423 P.3d 223 (Wash. 2018) . . . . . . . . . . . . . . . . . . . . . 12
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . passim
Partington v. Bugliosi,
56 F.3d 1147 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . 17
Reid v. Viacom Int’l Inc.,
No. 1:14-cv-01252 (N.D. Ga. Sept. 14, 2016) . . . . . . . 17
Rosenblatt v. Baer,
383 U.S. 75 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Street v. Nat’l Broad. Co.,
645 F.2d 1227 (6th Cir. 1981) . . . . . . . . . . . . . . . . . . . 17
Thoroughbred Legends, LLC v.
Walt Disney Co.,
No. 1:07-CV-1275-BBM, 2008 WL 616253
(N.D. Ga. Feb. 12, 2008) . . . . . . . . . . . . . . . . . . . . . 17-18
Time, Inc. v. Hill,
385 U.S. 374 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Alvarez,
567 U.S. 709 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13
Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc.,
425 U.S. 748 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ix
Cited Authorities
Page
Washburn v. Wright,
261 Cal. App. 2d 789 (1968) . . . . . . . . . . . . . . . . . . . . 19
Zacchini v. Scripps-Howard Broadcasting Co.,
433 U.S. 562 (1977) . . . . . . . . . . . . . . . . . . . 8, 12, 16, 19
Statutes and Other Authorities
U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sup. Ct. R. 13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Cal. Civ. Code § 3344 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2
Cal. Civ. Code § 3344(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Cal. Civ. Code § 3344(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Cal. Code Civ. Proc. § 425.16 . . . . . . . . . . . . . . . . . . . . 9, 19
Cal. Code Civ. Proc. § 425.16(c)(1) . . . . . . . . . . . . . . . . . 12
Amy J. Field, A Curtain Call for DocudramaDefamation Actions: A Clear Standard Takes
a Bow, 8 Loy. L.A. Ent. L. Rev. 113 (1988) . . . . . . . 17
Bonnie Eslinger, De Havilland Takes ‘Feud’ Fight
to California High Court, Law360 (May 3, 2018),
https://www.law360.com/articles/1040764 . . . . . . . . 8
x
Cited Authorities
Page
Chandra Johnson, Documentary Films Are
Becoming More Popular – But Are They Fact
or Fiction, Deseret News (July 7, 2016), https://
w w w.deseretnews.com/article/865657443/
Documentary-films-are-becoming-morepopular--but-are-they-fact-or-fiction.html . . . . 15, 20
CNN Library, Olivia de Havilland Fast Facts,
CNN, https: // w w w.cnn.com /2 013/01 /21 /
us /ol iv ia - de -hav i l la nd-fa st -fact s /i ndex .
html (last updated June 25, 2018) . . . . . . . . . . . . . . . 4
Complete Audio | Olivia de Havilland Lawsuit
Hear ing | “Feud: Bette Davis & Joan
Crawford,” YouTube (Mar. 23, 2018), https://
www.youtube.com/watch?v=48J9xfQR1d8 . . . 19-20
Dav id A . A nderson, Is Libel Law Wo r th
Reforming?, 140 U. PA. L. Rev. 487 (1991) . . . . . . . 21
Ellis A mburn, Olivia de H avilland and the
Golden Age of Hollywood (2018) . . . . . . . . . . . . 5, 6, 7
Er iq Gardner, Olivia de Havilland , Now
102, Will Take ‘Feud’ to Supreme Court,
H ol ly wo o d R e p or t e r (Aug. 2 3 , 2 018),
https://w w w.holly woodreporter.com /thresq/actress-olivia-de-havilland-now-102will-take-feud-supreme-court-1137142 . . . . . . . . 8, 20
xi
Cited Authorities
Page
Gavin Phillipson, Press freedom, the public
int erest an d p r iva cy, in C o m pa r a t i v e
Defamation and P rivacy L aw 136 (Andrew
T. Kenyon ed., Cambr idge Intellectual
Property and Information Law 2016) . . . . . . . . . . . . 16
James Poniewozik, Review: ‘Feud: Bette and Joan,’
A Clash of the Gossip Girls, N.Y. T imes
( M a r. 2 , 2 017 ), ht t p s: // w w w. ny t i m e s .
c o m / 2 017/ 0 3 / 0 2 /a r t s / t e l e v i s i o n /
feud-bette-joan-tv-review-fx.html . . . . . . . . . . . . . . . 5
Lyrissa Barnett Lidsky, Silencing John Doe:
Defamation & Discourse in Cyberspace,
49 Duke L.J. 855 (2000) . . . . . . . . . . . . . . . . . . . . . . . 21
Megan Moshayedi, Defamation by Docudrama:
Protecting Reputations from Derogatory
Speculation, 1993 U. Chi. Legal F. 331 (1993) . . . . .21
Nardine Saad, Appellate Court Hears Arguments In
Hollywood Legend Olivia de Havilland’s ‘Feud’
Lawsuit, L.A. Times (Mar. 20, 2018), http://www.
latimes.com/entertainment/tv/la-et-st-dehavilland-feud-appeal-20180320-story.html. . . . . . . 8
Ninth Circuit Court Conference, Rights of Publicity
Law, C-SPAN (July 26, 2018), https://www.cspan.org/video/?448660-2/ninth-circuit-courtconference-rights-publicity-law . . . . . . . . . . . . . . . . . 8
xii
Cited Authorities
Page
Paul Brownfield, At 101, a Survivor of Hollywood’s
Golden Age Throws Down the Gauntlet,
N.Y. T im es (Mar. 3, 2018), https://w w w.
ny times.com /2 018 /0 3/0 3/style /oliv ia- de havilland-fx-ryan-murphy-lawsuit.html . . . . . . . . . . 8
Press Release, Mills College, Immigrants’
Rights Advocate to Deliver Commencement
Address at Mills College (Apr. 11, 2018),
h t t p s : // w w w. m i l l s . e d u / n e w s / p r e s s r ele a s e s / i m m i g r a nt s -r i ght s - a d vo c at e to-deliver-commencement-address.php . . . . . . . . . . 4
Robert C. Post, Constitutional Domains (1995) . . . . . 21
Robert C. Post, The Social Foundations of
Defam atio n Law: Rep utatio n an d th e
Constitution, 74 Cal. L. Rev. 691 (1986) . . . . . . . . . 21
Saul S. Rostamian et al., Based on True Events,
L.A. Lawyer, May 2018, at 16 . . . . . . . . . . . . . . . . . . . 8
Scott Feinberg, Emmys: Ryan Murphy on
th e Rol e th e Oscars Pl ay Thro u gh o ut
‘Feud’ (Q&A), Holly wood R eporter (Apr.
1, 2017), https://w w w.holly woodreporter.
com/race/emmys-ryan-murphy-role-oscarsplay-throughout-feud-q-a-990187. . . . . . . . . . . . . . . . 7
xiii
Cited Authorities
Page
Scott Feinberg, New Details About the Joan
Fontaine-Olivia de Havilland Feud Revealed,
H o l ly w o o d R e p o r t e r ( Dec . 17, 2 013),
https://w w w.holly woodreporter.com/race/
joan-fontaine-olivia-de-havilland-666087 . . . . . . . 4-5
Summer Hargrove, Our Own Miss de Havilland,
T rinité , Autumn 2006, https//issuu.com /
americancathedralinparis/docs/trinitefall06 . . . . . . 4
1
DECISIONS BELOW
The opinion of the California Court of Appeal
reversing the order of the trial court denying Defendants/
Respondents’ special motion to strike Plaintiff/Petitioner’s
complaint (App. 1a-40a) is reported at 21 Cal.App.5th 845.
The Los Angeles Superior Court order (App. 41a-74a) is
available at 2017 WL 4682951. Both are attached in the
Appendix at 1a and 41a.
STATEMENT OF JURISDICTION
The California Court of Appeal entered its judgment
on March 26, 2018. App. 1a. The California Supreme Court
denied review on July 11, 2018. App. 75a. This Petition
is timely as it is filed within 90 days of the California
Supreme Court’s denial of review. Sup. Ct. R. 13.1. This
Court has jurisdiction of this matter under 28 U.S.C.
§ 1257(a). See Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Comm’n, 138 S.Ct. 1719, 1727 (2018). The
Opinion of the California Court of Appeal calls into
question the validity of California Civil Code section
3344 (right of publicity) on the grounds that the cause
of action it creates violates the First Amendment, even
where the unconsented commercial use of the name or
identity involves knowing or recklessly false publications
and eliminates the right to sue for defamation because it
sets up an immunity under the Constitution in its holding
that the First Amendment grants absolute protection
for knowing or recklessly published false statements in a
docudrama format. See App. 17a-23a.
2
PERTINENT CONSTITUTIONAL AND
STATUTORY PROVISIONS
At issue in this case is the application of a First
A mendment defense to immuni ze publication in
docudramas of knowing and reckless falsehoods so as to
infringe Petitioner’s First Amendment right to petition for
redress in the form of a suit for defamation and violation
of California Civil Code section 3344 (right of publicity).
“Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.” U.S. Const.
amend. I.
California’s right of publicity statute, section 3344 of
the California Civil Code states, in subsection (a):
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. In addition, in any
action brought under this section, the person
who violated the section shall be liable to the
injured party or parties in an amount equal
to the greater of seven hundred fifty dollars
($750) or the actual damages suffered by him
or her as a result of the unauthorized use, and
any profits from the unauthorized use that are
3
attributable to the use and are not taken into
account in computing the actual damages. In
establishing such profits, the injured party or
parties are required to present proof only of the
gross revenue attributable to such use, and the
person who violated this section is required to
prove his or her deductible expenses. Punitive
damages may also be awarded to the injured
party or parties. The prevailing party in any
action under this section shall also be entitled
to attorney’s fees and costs.
The statute has an exception for matters of public
interest: “For purposes of this section, a use of a name,
voice, signature, photograph, or likeness in connection
with any news, public affairs, or sports broadcast or
account, or any political campaign, shall not constitute a
use for which consent is required under subdivision (a).”
Cal. Civ. Code § 3344(d). The public interest exception in
3344(d) does not protect knowing or reckless publication
of false statements. Eastwood v. Superior Court, 149
Cal. App. 3d 409, 424 (1983) (denying dismissal of a right
of publicity case on First Amendment grounds where
newspaper published a fake interview).
STATEMENT OF THE CASE
A. Factual Background
It is true and uncontested that 102-year-old Olivia de
Havilland is alive and fiercely protective of her name and
professional reputation. The two-time Academy Awardwinning Best Actress, perhaps best known for her iconic
portrayal of Melanie Hamilton in “Gone with the Wind,”
is one of the few living actors from the Golden Age of
4
Hollywood. Miss de Havilland is almost unique among
major stars in that she achieved success without sacrificing
her strong moral and personal commitment to truth,
loyalty, consideration of others, and plain old fashioned
good manners. She was awarded the National Medal of the
Arts by President George W. Bush, the Legion d’Honneur
by French President Nicolas Sarkozy, and was appointed
a Dame of the British Empire by Her Majesty Queen
Elizabeth II.1 Petitioner has built a professional reputation
over her eighty-year career for integrity, honesty, fidelity,
and dignity. 2 Despite living most of her life in the public
eye, Petitioner has refused to involve herself in tabloid
gossip. For example, she specifically restrained herself
from making rude comments about her sister, actress
Joan Fontaine, even when provoked. 3
1. CNN Library, Olivia de Havilland Fast Facts, CNN,
https://www.cnn.com/2013/01/21/us/olivia-de-havilland-fast-facts/
index.html (last updated June 25, 2018). She has been nominated
for five Academy Awards and an Emmy, and won two Academy
Awards for Best Actress. Id. She received an Honorary Doctorate
of Humane Letters from Mills College. Press Release, Mills
College, Immigrants’ Rights Advocate to Deliver Commencement
Address at Mills College (Apr. 11, 2018), https://www.mills.edu/
news/press-releases/immigrants-rights-advocate-to-delivercommencement-address.php (noting Miss de Havilland’s social
activism and penchant for “standing up for her rights and the
rights of her colleagues.”).
2. Until she was 100 years old and troubled by diminished
eyesight, Olivia de Havilland read the scriptures on Easter and
Christmas Eve at the American Cathedral in Paris, where she has
been a parishioner for over 65 years. Summer Hargrove, Our Own
Miss de Havilland, Trinité, Autumn 2006, at 8-9, https//issuu.
com/americancathedralinparis/docs/trinitefall06.
3. Joan Fontaine herself denied she had any feud with her
sister. Scott Feinberg, New Details About the Joan Fontaine-
5
In direct and purposeful contradiction to the facts and
historical truth, FX Respondents created and broadcast
a so-called docudrama-style television series, entitled
“Feud: Bette [Davis] and Joan [Crawford]” (“Feud”),
in which Petitioner was used by name as the narrator,
allegedly endorsing the theme of vulgar-speaking, catfighting, back-biting, female Hollywood stars, including
with her own sister.4 Tens of millions of people viewed
“Feud,” and for a new generation, most likely all they
know of Petitioner is found in the unauthorized lies and
mischaracterization of her life, her work, and her nature
as put forward in that series. Throughout the production,
in keeping with its vulgar theme, Petitioner is falsely
portrayed as a gossip who, for example, shares intimate
details on-camera about her close friend, Bette Davis, calls
her sister a “bitch” to others in her profession, and makes
snide remarks about Frank Sinatra’s alcohol consumption.5
Despite being the only living principal character in
“Feud,” Petitioner’s consent was not obtained for the use
of her identity, name, or likeness in the production, she
Olivia de Havilland Feud Revealed, Hollywood Reporter (Dec.
17, 2013), https://www.hollywoodreporter.com/race/joan-fontaineolivia-de-havilland-666087.
4. “‘Feud’ is about . . . how Hollywood creates a catfight
narrative between two women and sells tickets to it. It’s about
hate as a commodity, a product, a shameful meal plated under a
silver dome.” James Poniewozik, Review: ‘Feud: Bette and Joan,’
A Clash of the Gossip Girls, N.Y. Times (Mar. 2, 2017), https://
www.nytimes.com/2017/03/02/arts/television/feud-bette-joan-tvreview-fx.html.
5. App. 44a, 56a-57a. Ellis A mburn, Olivia de H avilland
and the G olden Age of Hollywood 321-25 (2018) (hereinafter
“A mburn, The G olden Age”).
6
was not consulted as to the truth of the statements made
by her character, and she was not compensated for the
use of her identity.6 This false portrayal has damaged
Petitioner’s reputation.7
FX admits it did not obtain consent for the use of
Petitioner’s name and identity, and does not deny it
intentionally broadcast a fake and false interview with
Petitioner to enhance the “Feud” theme with a real
Hollywood icon of the period. 8 As the author of a recent
biography of Miss de Havilland states therein: “Watching
Feud, I found almost none of the statements made by
the de Havilland character, certainly not the negative
portrayal of her as another female actor who would gossip
and stab friends and relatives in the back, supported by
my own research.” 9 FX admits “Feud” was designed
to make it appear authentic, and to make the audience
“trust” Petitioner’s character and what she said about
the alleged relationship between Davis and Crawford,
and her own private relationship with Fontaine.10 The
series was purposely structured to appear as if the real
Petitioner participated in and endorsed “Feud.” Executive
producer and writer, Ryan Murphy, made a deliberate
decision not to contact Petitioner to verify the authenticity
of “Feud’s” portrayal or any of the statements attributed
6. App. 66a, 71a-72a.
7. App. 53a-54a, 65a-66a.
8. App. 46a, 51a, 72a.
9. A mburn, The G olden Age at 321-22.
10. App. 59a, 62a-63a.
7
to her in the series.11 Yet FX contacted, in accord with
standard industry practice, artist Don Bachardy, who
was portrayed in a minor role, for permission to use his
name and property.12 The statements and endorsement
which form the basis for Petitioner’s lawsuit are all false
or have no factual support, and many are contradicted by
FX’s own research.13
FX claims that the First Amendment creates a special
exemption from suit based on publication of knowing
falsehoods for docudramas, and thus, because “Feud” is
a docudrama, it is entitled to an absolute protection from
Miss de Havilland’s claims.14 FX also asserts that the First
Amendment allows it to use the literal name and identity
of a living person in a docudrama without consent despite
the California right of publicity statute to the contrary.15
The trial court rejected this defense position, denying
FX’s special motion to strike before discovery, but the
California Court of Appeal reversed, holding that the
First Amendment does absolutely protect publication of
knowing or reckless falsehoods in a docudrama format,
granting the FX special motion to strike and awarding
11. Scott Feinberg, Emmys: Ryan Murphy on the Role the
Oscars Play Throughout ‘Feud’ (Q&A), Hollywood Reporter
(Apr. 1, 2017), https://www.hollywoodreporter.com/race/emmysryan-murphy-role-oscars-play-throughout-feud-q-a-990187.
12. App. 71a.
13. App. 46a-50a, 57a-59a; A mburn, T he G olden Age at
321-22.
14. App. 61a-67a.
15. App. 67a.
8
attorneys’ fees against Petitioner for bringing her claims.16
The Court of Appeal, stating that, under the First
Amendment, Miss de Havilland “does not own history,”
also dismissed her cause of action for violation of her right
of publicity.17 Despite extensive public and press attention
over the constitutional issues raised by the case,18 and the
filing of over 80 amicus letters in support of review, the
California Supreme Court denied Miss de Havilland’s
Petition for review, with Justice Mariano-Florentino
Cuéllar voting to grant review.19
16. App. 39a.
17. App. 2a, 26a-28a; but see Zacchini v. Scripps-Howard
Broadcasting Co., 433 U.S. 562 (1977) (reversing the Ohio Supreme
Court and holding that the First Amendment did not render the
right of publicity unconstitutional).
18. See, e.g., Paul Brownfield, At 101, a Survivor of
Hollywood’s Golden Age Throws Down the Gauntlet, N.Y. Times
(Mar. 3, 2018), https://www.nytimes.com/2018/03/03/style/oliviade-havilland-fx-ryan-murphy-lawsuit.html; Saul S. Rostamian et
al., Based on True Events, L.A. Lawyer, May 2018, at 16; Ninth
Circuit Court Conference, Rights of Publicity Law, C-SPAN
(July 26, 2018), https://www.c-span.org/video/?448660-2/ninthcircuit-court-conference-rights-publicity-law; Eriq Gardner,
Olivia de Havilland, Now 102, Will Take ‘Feud’ to Supreme
Court, Holly wood R eporter (Aug. 23, 2018) (https://w w w.
hollywoodreporter.com/thr-esq/actress-olivia-de-havilland-now102-will-take-feud-supreme-court-1137142?); Bonnie Eslinger, De
Havilland Takes ‘Feud’ Fight to Calif. High Court, Law 360 (May
3, 2018), https://www.law360.com/articles/1040764; Nardine Saad,
Appellate Court Hears Arguments In Hollywood Legend Olivia
de Havilland’s ‘Feud’ Lawsuit, L.A. Times (Mar. 20, 2018), http://
www.latimes.com/entertainment/tv/la-et-st-de-havilland-feudappeal-20180320-story.html.
19. App. 75a.
9
This Court has jurisdiction over final state court
opinions involving a federal constitutional question when
the highest court in the state refuses review. Miss de
Havilland asks this Court to review the position of the
Court of Appeal that the long line of this Court’s prior
cases stating that knowing or recklessly false statements
in any form of publication have no First Amendment
protection 20 do not apply to a genre which calls itself
docudrama, and reject the conclusion that claims based
on such falsities are unconstitutional as a matter of law. 21
B. State Court Proceedings
On June 30, 2017, Miss de Havilland filed her
Complaint in the Superior Court of California in Los
Angeles County on the grounds that Respondents violated
her California common law and statutory right of publicity,
committed false light invasion of privacy, and unjustly
enriched themselves in the process. On August 29, 2017,
Respondents filed a special motion to strike Petitioner’s
Third Amended Complaint under California Code of Civil
Procedure section 425.16 (“anti-SLAPP motion”), alleging
that their unconsented and false use of Miss de Havilland’s
name and image in the docudrama format had absolute
immunity under the First Amendment, trumping Miss de
Havilland’s right to petition for relief.
20. “Time and again, this Court has recognized that as a
general matter false factual statements possess no intrinsic First
Amendment value.” United States v. Alvarez, 567 U.S. 709, 74647 (2012) (Alito, Thomas, and Scalia, J.J., dissenting) (numerous
citations omitted).
21. App. 38a.
10
On September 29, 2017, following full briefing and
oral argument, the trial court issued its Ruling denying
Respondents’ anti-SLAPP motion. The trial court found,
pursuant to the anti-SLAPP standard, that Petitioner had
“successfully met her burden in showing that she has a
likelihood of prevailing on the merits . . . .” App. 44a. As to
her false light claim, the trial court ruled that “[Petitioner]
has sufficiently met her burden in showing that the use
of the term ‘bitch’ and ‘bitches’ in the television show
were not factually accurate,” that “[critical] comments
about Frank Sinatra were false,” that “a viewer of the
television show, which is represented to be based on
historical facts, may think [Petitioner] to be a gossip
who uses vulgar terms about other individuals, including
her sister . . . [which] could have a significant economic
impact,” and that Respondents “attributed comments to
her ‘with knowledge that it was false or with reckless
disregard of whether it was false or not.’” App. 49a-50a,
53a, 59a. The trial court further found that Respondents’
appropriation of Petitioner’s name and likeness was not
constitutionally protected. App. 61a-67a. “In other words,
‘depictions of celebrities amounting to little more than
the appropriation of the celebrity’s economic value are
not protected expression under the First Amendment.’”
App. 65a.
On October 10, 2017, Respondents appealed. The oral
argument took place on March 20, 2018 to an overflow
crowd of reporters, lawyers, law students, and members
of the public. Four business days after the argument, on
March 26, 2018, the court of appeal issued an Opinion
reversing the trial court and granting Respondents’ antiSLAPP motion in its entirety, based on its conclusion that
the First Amendment provides a complete defense for
docudramas, knowingly false or not, as a matter of law:
11
When the expressive work at issue is . . . a
combination of fact and fiction, the “actual
malice” [publication of a knowing or reckless
falsehood] analysis takes on a further wrinkle.
De Havilland argues that, because she did
not grant an interview at the 1978 Academy
Awards or make the “bitch sister” or “Sinatra
drank the alcohol” remarks to Bette Davis,
Feud’s creators acted with actual malice. But
fiction [or part fiction] is by definition untrue.
It is imagined, made-up. Put more starkly, it is
false. Publishing a fictitious [false] work about a
real person cannot mean the author, by virtue
of writing [part] fiction, has acted with actual
malice.
App. 37a.
The Court of Appeal also found as a matter of law that
the false depiction of Miss de Havilland was not offensive.
App. 38a (“[W]e conclude Zeta-Jones’s portrayal of de
Havilland in Feud is not highly offensive to a reasonable
person as a matter of law.”). The Court of Appeal further
held that the: “First Amendment protects FX’s portrayal
of de Havilland in a docudrama without her permission,”
and “Feud ‘is speech that is fully protected by the First
Amendment, which safeguards the storytellers and artists
who take the raw materials of life – including the stories
of real individuals, ordinary or extraordinary – and
transform them into art, be it articles, books, movies,
or plays.’” App. 14a, 20a. “That Feud’s creators did not
purchase or otherwise procure de Havilland’s ‘rights’ to
her name or likeness does not change this analysis. . . .
[T]he First Amendment simply does not require such
12
acquisition agreements.” App. 21a-22a. 22 The Court of
Appeal awarded attorneys’ fees against Miss de Havilland
under California Code of Civil Procedure section 425.16,
subdivision (c). 23
On May 4, 2018, Petitioner filed a Petition for Review
in the California Supreme Court. Eighty-seven amicus
letters were submitted in support of Miss de Havilland’s
Petition, and none were submitted in opposition. In a
Notice dated July 11, 2018, the California Supreme Court
declined to review the case, although Justice MarianoFlorentino Cuéllar published that he was “of the opinion
the petition should be granted.” App. 75a.
22. Contra Zacchini, 433 U.S. at 576, 578-79 (“‘The rationale
for (protecting the right of publicity) is the straightforward one of
preventing unjust enrichment by the theft of good will. No social
purpose is served by having the defendant get free some aspect of
the plaintiff that would have market value and for which he would
normally pay.’ . . . We conclude that although the State of Ohio may
as a matter of its own law privilege the press in the circumstances
of this case, the First and Fourteenth Amendments do not require
it to do so.”).
23. App. 39a; Cal. Code Civ. Proc. § 425.16(c)(1) (“[A]
prevailing defendant on a special motion to strike shall be entitled
to recover his or her attorney’s fees and costs.”) (In contrast, the
complaining party is only entitled to attorney fees and costs if “the
court finds that a special motion to strike is frivolous or is solely
intended to cause unnecessary delay . . . .”). Anti-SLAPP statutes
which present a serious infringement of the First Amendment right
to petition the Government for grievances are unconstitutional.
Davis v. Cox, 183 Wash. 2d 269, 295-96 (2015), abrogated on other
grounds by Maytown Sand & Gravel, LLC v. Thurston Cty., 423
P.3d 223 (Wash. 2018) (The Washington Legislature attempted “to
protect one group of citizens constitutional rights of expression
and petition—by cutting off another group’s constitutional rights
of petition and jury trial. This the legislature cannot do.”).
13
REASONS FOR GRANTING THE PETITION
I.
The First Amendment Does Not Grant Absolute
Immunity to Docudramas Which Harm Living
Persons by Publishing K nown or Reckless
Falsehoods
A.
The California Court of Appeal’s Reasoning
Conflicts with the Limited First Amendment
Protection for Publication of Falsehoods this
Court Has Repeatedly Enunciated
“Time and again, this Court has recognized that
as a general matter false factual statements possess no
intrinsic First Amendment value.” Alvarez, 567 U.S. at
746-47 (Alito, Thomas, and Scalia, J.J., dissenting). 24
2 4. See Illinois ex rel . Ma digan v. Telemarketing
Associates, Inc., 538 U.S. 600, 612 (2003) (“Like other forms of
public deception, fraudulent charitable solicitation is unprotected
speech.”); BE & K Constr. Co. v. NLRB, 536 U.S. 516, 531 (2002)
(“[F]alse statements may be unprotected for their own sake . . . .”);
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988) (“False
statements of fact are particularly valueless; they interfere with
the truth-seeking function of the marketplace of ideas, and they
cause damage to an individual’s reputation that cannot easily be
repaired by counterspeech, however persuasive or effective.”);
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776 (1984) (“There
is ‘no constitutional value in false statements of fact.’”) (quoting
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)); Bill Johnson’s
Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983) (“[F]alse
statements are not immunized by the First Amendment right to
freedom of speech . . . .”); Brown v. Hartlage, 456 U.S. 45, 60 (1982)
(“Of course, demonstrable falsehoods are not protected by the First
Amendment in the same manner as truthful statements.”); Herbert
v. Lando, 441 U.S. 153, 171 (1979) (“Spreading false information in
14
Further, this Court has consistently rejected the absolutist
view of the First Amendment even in application to the
news media:
The need to avoid self-censorship by the news
media is, however, not the only societal value
at issue. If it were, this Court would have
embraced long ago the view that publishers
and broadcasters enjoy an unconditional
and indefeasible immunity from liability
for defamation. See New York Times Co. v.
Sullivan, supra, at 293, 84 S.Ct., at 733 (Black,
J., concurring); Garrison v. Louisiana, 379
U.S., at 80, 85 S.Ct., at 218 (Douglas, J.,
concurring); Curtis Publishing Co. v. Butts, 388
U.S., at 170, 87 S.Ct., at 1999 (opinion of Black,
J.). Such a rule would, indeed, obviate the fear
that the prospect of civil liability for injurious
falsehood might dissuade a timorous press
from the effective exercise of First Amendment
freedoms. Yet absolute protection for the
communications media requires a total sacrifice
and of itself carries no First Amendment credentials.”); Virginia
Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U.S. 748, 771 (1976) (“Untruthful speech, commercial or otherwise,
has never been protected for its own sake.”); Gertz, 418 U.S. at 340
(“[T]he erroneous statement of fact is not worthy of constitutional
protection . . . .”); Time, Inc. v. Hill, 385 U.S. 374, 389 (1967)
(“[T]he constitutional guarantees [of the First Amendment] can
tolerate sanctions against calculated falsehood without significant
impairment of their essential function.”); Garrison v. Louisiana,
379 U.S. 64, 75 (1964) (“[T]he knowingly false statement and the
false statement made with reckless disregard of the truth, do not
enjoy constitutional protection.”).
15
of the competing value served by the law of
defamation.
. . . We would not lightly require the State
to abandon this purpose, for, as Mr. Justice
Stewart has reminded us, the individual’s
right to the protection of his own good name
“reflects no more than our basic concept of the
essential dignity and worth of every human
being–a concept at the root of any decent
system of ordered liberty. The protection of
private personality, like the protection of life
itself, is left primarily to the individual States
under the Ninth and Tenth Amendments. But
this does not mean that the right is entitled to
any less recognition by this Court as a basic of
our constitutional system.”
Gertz, 418 U.S. at 341.
The First Amendment does not protect knowing
or reckless publication of a falsehood, even if such
falsehoods are artfully constructed and entertaining. Id.
This basic principle of First Amendment jurisprudence
is currently under attack from powerful media forces
because sensationalist lies are more popular, and hence
more profitable, than reality, which is often relatively
dull. 25 To those commercial interests that reap enormous
profits from this form of entertainment, any collateral
25. See, e.g., Chandra Johnson, Documentary Films
Are Becoming More Popular – But Are They Fact or Fiction,
D eseret News (July 7, 2016), https://www.deseretnews.com/
article/865657443/Documentary-films-are-becoming-morepopular--but-are-they-fact-or-fiction.html.
16
damage done to real human beings by publicizing known
falsehoods in a successful television series should be an
acceptable social cost. 26 Publication of known falsehoods
about real people is not “history,” but a perversion of
the actual past. 27 The law as stated by this Court has
traditionally provided recourse for those, like Miss de
Havilland, damaged by knowing misuse of an identity and
publication of falsehoods, in the form of causes of action for
violation of the rights to privacy and publicity, 28 consistent
with the legitimate purposes of the First Amendment. 29
26. Neither is political expression absolutely protected, when
unauthorized misleading use results in harm. See, e.g., Browne v
McCain, 611 F. Supp. 2d 1062, 1072 (C.D. Cal. 2009) (denying an
anti-SLAPP motion to strike the complaint of singer song writer
Jackson Browne for unconsented use of his literal voice and identity
in a political advertisement, finding the “RNC has not shown that
political expression’s broad First Amendment protection bars, as
a matter of law, all actions based on allegedly improper use of a
person’s identity in campaign-related materials.”).
27. See supra note 26.
28. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 279280; Zacchini, 433 U.S. at 576-578; Masson v. New Yorker Magazine,
Inc., 501 U.S. 496 (1991).
29. The legitimate purposes of the free speech clause of
the First Amendment include: “discovery of truth, democratic
deliberation, the development of individuals, and the holding
of government to account.” Gavin Phillipson, Press freedom,
the public interest and privacy, in Comparative Defamation
and P rivacy L aw 136, 138 (Andrew T. Kenyon ed., Cambridge
Intellectual Property and Information Law 2016).
17
B. T h e New F i r s t A m e n d m e nt R u le fo r
Docudramas Conflicts with Holdings of Other
Courts
The California Court of Appeal distinguishes,
without any justification, docudramas from other forms of
publication, and holds that knowingly false statements in
this genre are protected by the First Amendment to the
same extent as the truth. 30 In contrast to the California
Court of Appeal, many courts have applied the actual New
York Times standard to docudramas. 31 However, several
courts, state and federal, including the California Court of
Appeal here, have departed from New York Times and its
progeny, and have created a “modified” standard resulting
in absolute First Amendment immunity for docudramas. 32
30. “‘[N]o distinction may be drawn in this context
[docudrama] between fictional [knowingly false] and factual
accounts of Valentino’s life.’ [Citation.] ‘[T]ruthful and fictional
[knowingly false] accounts’ ‘have equal constitutional stature.’” See
App. 18a (quoting concurring opinion of Justice Bird in Guglielmi
v. Spelling-Goldberg Prods., 25 Cal.3d 860, 868, 871 (1979)).
31. See, e.g., Reid v. Viacom Int’l Inc., No. 1:14-cv-01252
(N.D. Ga. Sept. 14, 2016) (order granting in part and denying in
part motion for summary judgment in a defamation case involving
a docudrama and rejecting the argument that, as a matter of law,
a docudrama has First Amendment protection beyond the actual
malice standard); Partington v. Bugliosi, 56 F.3d 1147, 1155 (9th
Cir. 1995) (“We do not intimate that the First Amendment shields
from scrutiny . . . every statement made in a docudrama based
upon such an [actual] event . . . .”); Foretich v. Capital Cities/ABC,
Inc., 37 F.3d 1541, 1551 (4th Cir. 1994); Street v. Nat’l Broad. Co.,
645 F.2d 1227, 1233 (6th Cir. 1981).
32. Amy J. Field, A Curtain Call for Docudrama-Defamation
Actions: A Clear Standard Takes a Bow, 8 Loy. L.A. Ent. L. Rev.
113 (1988); Thoroughbred Legends, LLC v. Walt Disney Co., No.
18
The so-called modified rule for docudramas in fact
eliminates the New York Times actual malice standard.
First Amendment analysis under New York Times
protects only negligent publication of falsehoods about a
public person, not intentional or reckless publications. The
California Court of Appeal Opinion here, if left standing,
would also protect knowing or recklessly false statements
to the same degree as truthful or negligently false ones
in a docudrama, precluding any cause of action based
on a docudrama, even if knowingly or recklessly false
statements are made which harm a living public figure. 33
II. Olivia de Havilland’s Case Should Be Reviewed
by This Court Because It Involves an Important
Constitutional Issue Which Affects Thousands of
Public Figures and Private Persons Who May Be
Involved in Public Issues
The California Court of Appeal’s treatment of
docudramas, such that they alone are absolutely protected
by the First Amendment from right of publicity and
defamation claims, leaves a limitless number of public
figures without any means to protect their reputations
1:07-CV-1275-BBM, 2008 WL 616253, at *13 (N.D. Ga. Feb. 12,
2008) (“[T]he statements attributed to the Plaintiffs in the ‘Ruffian’
film may not be actionable if . . . any falsity was incident to ‘author’s
license’ in creating a dramatization of the story.”); Guglielmi, 25 Cal
3d. at 868 (Bird, J. concurring) (in determining whether defendants’
work was protected by the First Amendment, “no distinction may be
drawn in this context [film] between fictional and factual accounts
of [plaintiff]’s life.”).
33. See App. 18a-19a (quoting concurring opinion of Justice
Bird in Guglielmi, 25 Cal.3d at 868).
19
and secure compensation for harm done. See App. 17a-20a,
26a-28a 34 Since FX brought its special motion to strike
under California’s anti-SLAPP statute, 35 the Court also
awarded attorneys’ fees against Petitioner as punishment
for filing her non-frivolous suit. 36
34. The Court of Appeal’s decision also adopts the position
that the First Amendment prevents a living person from a cause of
action based on the right of publicity, where the statements made
are false, because using the name and identity of a living person
is transformed by the medium of docudrama, and employing a
comparison of how many minutes of time are spent on subjects
other than the victim. See App. 4a, 26a-28a, 32a n.12. The California
Supreme Court in Comedy III Prods., Inc. v. Gary Saderup, Inc.,
developed the “transformative” test to distinguish between a First
Amendment protected use of a living person’s name and identity and
an unlawful misappropriation. Comedy III held that an unconsented
use of the literal name or image of a living person, rather than a
“transformed” or merely suggestive one, was not protected under the
First Amendment, and therefore, the right of publicity statute was
available to protect name and image and did not raise constitutional
concerns. Comedy III, 25 Cal.4th 387, 403-405 (2001); see also
Zacchini, 433 U.S. at 573-576. The Court of Appeal decision below
redraws the test, finding that if there is a numerically greater amount
of “expression” contributed by a docudrama than the numerical
amount of time devoted to unconsented use, computed by adding
up all the separate installments shown at different times, then the
First Amendment prohibits any right of publicity claim. See App. 4a,
26a-28a, 32a n.12; contra Masson, 501 U.S. at 510 (“‘[T]he test of libel
is not quantitative; a single sentence may be the basis for an action
in libel even though buried in a much longer text . . . .’”) (quoting
Washburn v. Wright, 261 Cal. App. 2d 789, 795 (1968)).
35. Cal. Code Civ. Proc. § 425.16.
36. See App. 39a. During the oral argument, Justice Anne
Egerton stated: “I think frivolous isn’t the test, is it?” Complete
Audio | Olivia de Havilland Lawsuit Hearing | “Feud: Bette
20
Miss de Havilland’s case presents the right vehicle
for this Court to review and clarify whether the First
Amendment creates a special immunity for knowingly
false statements published in a docudrama at a time when
this genre is at an all-time high point, 37 and the public is
being bombarded with fake representations masquerading
as historical fact. 38
The California Court of Appeal Opinion frames the
issue and squarely contradicts the holding and reasoning
of New York Times Co. v. Sullivan. There is nothing about
a docudrama or partially fictionalized historical work
which does or should allow the genre to freely and without
consequence mix in falsehoods in order to increase ratings
or to fill gaps in the narrative with lies in order to improve
profits or make it more interesting to the public, where
those distortions and fabrications of the historical record
cause damage to living persons.
Davis & Joan Crawford,” You Tube at 54:21-23 (Mar. 23, 2018),
https://www.youtube.com/watch?v=48J9xfQR1d8.
37. See, e.g., Chandra Johnson, Documentary Films
Are Becoming More Popular – But Are They Fact or Fiction,
D eseret News (July 7, 2016), https://www.deseretnews.com/
article/865657443/Documentary-films-are-becoming-morepopular--but-are-they-fact-or-fiction.html.
38. See Eriq Gardner, Olivia de Havilland, Now 102, Will
Take ‘Feud’ to Supreme Court, Hollywood Reporter (Aug. 23,
2018), https://www.hollywoodreporter.com/thr-esq/actress-oliviade-havilland-now-102-will-take-feud-supreme-court-1137142 (“A
petition that could forever impact biopics and docudramas: What
does ‘actual malice’ mean when the genre is by definition untrue?”).
21
At a time when the courts need to maintain the line
between truth and falsehood, it is critical that knowing
or reckless fabrications not be permitted under the cloak
of the First Amendment. 39 The protections of the First
Amendment are not limitless, and indeed when sound
restrictions on speech, including defamation and right
of publicity laws, are kept in place, this “helps to make
meaningful discourse possible,” and “gives society a
means for announcing that certain speech has crossed the
bounds of propriety.”40 Without checks on the accuracy of
information, public discourse “would have no necessary
anchor in truth” and the “credibility of the press would be
at the mercy of the least scrupulous among it.”41
Petitioner thus respectfully requests that this Court
grant this petition for writ of certiorari and review the
opinion from the California Court of Appeal which would
grant absolute constitutional protection to false and
damaging speech in a docudrama, unlike any other form
39. “Docudramas weave fact with fiction to create a
captivating story: they often change artistically unsatisfactory
facts and fabricate unavailable facts.” Megan Moshayedi,
Defamation by Docudrama: Protecting Reputations from
Derogatory Speculation, 1993 U. Chi. Legal F. 331, 332 (1993)
(arguing that the New York Times test does not do enough to
protect reputation from speculation in a docudrama which cannot
be proved by plaintiff to be false).
40. Lyrissa Barnett Lidsky, Silencing John Doe: Defamation
& Discourse in Cyberspace, 49 Duke L.J. 855, 886 (2000) (citing
Robert C. Post, Constitutional Domains (1995); Robert C. Post,
The Social Foundations of Defamation Law: Reputation and the
Constitution, 74 Cal. L. Rev. 691, 713 (1986)).
41. David A. Anderson, Is Libel Law Worth Reforming?, 140
U. PA. L. Rev. 487, 490 (1991).
22
of publication. “Society has a pervasive and strong interest
in preventing and redressing attacks upon reputation.”
Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). If the decision
below is allowed to stand, living victims of this medium
will not be able to petition for redress where damage is
caused to one’s reputation in a so-called historical drama
which capitalizes on the value of a real persona while
mixing in knowing falsehoods at will.
CONCLUSION
For the foregoing reasons, the petition for writ of
certiorari should be granted.
Respectfully submitted,
Suzelle M. Smith
Counsel of Record
Don Howarth
Howarth & Smith
523 West Sixth Street, Suite 728
Los Angeles, California 90014
(213) 955-9400
ssmith@howarth-smith.com
Counsel for Petitioner
October 5, 2018
APPENDIX
1a
AppendixOF
A THE COURT OF
APPENDIX A — OPINION
APPEAL OF THE STATE OF CALIFORNIA,
SECOND APPELLATE DISTRICT, DIVISION
THREE, FILED MARCH 26, 2018
IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
B285629
OLIVIA DE HAVILLAND,
Plaintiff and Respondent,
v.
FX NETWORKS, LLC, et al.,
Defendants and Appellants.
March 26, 2018, Opinion Filed
APPEAL from an order of the Superior Court of Los
Angeles County, Holly E. Kendig, Judge. Reversed with
directions.
Authors write books. Filmmakers make films.
Playwrights craft plays. And television writers, directors,
and producers create television shows and put them on
the air—or, in these modern times, online. The First
Amendment protects these expressive works and the free
2a
Appendix A
speech rights of their creators. Some of these works are
fiction. Some are factual. And some are a combination
of fact and fiction. That these creative works generate
income for their creators does not diminish their
constitutional protection. The First Amendment does not
require authors, filmmakers, playwrights, and television
producers to provide their creations to the public at no
charge.
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.
In this case, actress Olivia de Havilland sues FX
Networks, LLC, and Pacific 2.1 Entertainment Group,
Inc. (collectively FX), the creators and producers of the
television miniseries Feud: Bette and Joan (Feud). In
the docudrama about film stars Bette Davis and Joan
Crawford, an actress plays de Havilland, a close friend of
Davis. De Havilland alleges causes of action for violation of
the statutory right of publicity and the common law tort of
misappropriation. De Havilland grounds her claims on her
assertion—which FX does not dispute—that she “did not
give [her] permission to the creators of ‘Feud’ to use [her]
name, identity[,] or image in any manner.” De Havilland
also sues for false light invasion of privacy based on FX’s
portrayal in the docudrama of a fictitious interview and
3a
Appendix A
the de Havilland character’s reference to her sister as
a “bitch” when in fact the term she used was “dragon
lady.” De Havilland seeks to enjoin the distribution and
broadcast of the television program and to recover money
damages.
The trial court denied FX’s special motion to strike
the complaint. The court concluded that, because Feud
tried to portray de Havilland as realistically as possible,
the program was not “transformative” under Comedy
III Productions 1 and therefore not entitled to First
Amendment protection. As appellants and numerous amici
curiae point out, this reasoning would render actionable
all books, films, plays, and television programs that
accurately portray real people. Indeed, the more realistic
the portrayal, the more actionable the expressive work
would be. The First Amendment does not permit this
result. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Feud airs and de Havilland sues
In March 2017, FX began airing its eight-part
docudrama, Feud: Bette and Joan. The docudrama
portrays the rivalry between actresses Joan Crawford
and Bette Davis. The central theme of the program is that
powerful men in Hollywood pressured and manipulated
women in the industry into very public feuds with one
1. Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001)
25 Cal.4th 387 [106 Cal. Rptr. 2d 126, 21 P.3d 797] (Comedy III).
4a
Appendix A
another to advance the economic interests of those men
and the institutions they headed. A secondary theme—as
timely now as it was in the 1960’s—is the poor treatment
by Hollywood of actresses as they age.
Academy-Award-winning actress Catherine ZetaJones portrays de Havilland in the docudrama. The de
Havilland role is a limited one, consuming fewer than
17 minutes of the 392-minute, eight-episode miniseries.
The role consists essentially of two parts: (1) a fictitious
interview in which Zeta-Jones—often accompanied by
Academy-Award-winning actress Kathy Bates playing
actress Joan Blondell—talks to an interviewer (a young
man named “Adam”) about Hollywood, its treatment of
women, and the Crawford/Davis rivalry and (2) scenes in
which Zeta-Jones interacts with Academy-Award-winning
actress Susan Sarandon playing Bette Davis. These
scenes portray the close friendship between Davis and
de Havilland. As played by Zeta-Jones, the de Havilland
character is portrayed as beautiful, glamorous, selfassured, and considerably ahead of her time in her views
on the importance of equality and respect for women in
Hollywood. Feud was nominated for 18 Emmy awards.
On June 30, 2017, de Havilland filed this lawsuit. Her
third amended complaint, filed in September 2017, alleges
four causes of action: (1) the common law privacy tort
of misappropriation; (2) violation of Civil Code section
3344, California’s statutory right of publicity; (3) false
light invasion of privacy; and (4) “unjust enrichment.”
De Havilland asks for damages for emotional distress
and harm to her reputation; “past and future” “economic
5a
Appendix A
losses”; FX’s “profits gained … from and attributable to the
unauthorized use of [her] name, photograph, 2 or likeness”;
punitive damages; attorney fees; and a permanent injunction
prohibiting the “broadcast and distribution” of the series. 3
2. FX’s special motion to strike
a.
FX’s motion, declarations, and exhibits
On August 29, 2017, FX filed a motion to strike the
complaint under California’s anti-SLAPP4 law, Code of Civil
2. There seems to be only one photograph to which de Havilland
could be referring. At the end of the miniseries, just before the credits,
Feud displays side-by-side photographs of the real people who had some
involvement in the story and the actor who played each. These include
director Robert Aldrich (played by Alfred Molina), Jack Warner of
Warner Brothers (played by Stanley Tucci), Joan Crawford (played
by Jessica Lange), Victor Buono (played by Dominic Burgess), Bette
Davis’s daughter B.D. Merrill (played by Kiernan Shipka), and Hedda
Hopper (played by Judy Davis), as well as Davis and de Havilland,
played, as noted, by Sarandon and Zeta-Jones, respectively. A short
blurb tells the viewer what became of each person. For de Havilland,
the blurb states, “Olivia de Havilland made her screen debut in Max
Reinhardt’s A Midsummer Night’s Dream in 1935. She retired from
film acting in 1988. She continues to enjoy her retirement in Paris. On
July 1, 2016, she turned 100 years old.” De Havilland attached a copy
of the side-by-side photographs of her and Zeta-Jones to her complaint.
3. On July 25, 2017, de Havilland filed a motion for trial setting
preference. De Havilland submitted a declaration stating she lives
in Paris and is 101 years old. She also submitted a declaration by a
Los Angeles physician stating that any person of that age “will not
survive for any extended period of time.”
4. SLAPP is an acronym for strategic lawsuit against public
participation. (Christian Research Institute v. Alnor (2007) 148 Cal.
App.4th 71, 76, fn. 1 [55 Cal. Rptr. 3d 600] (Christian Research).)
6a
Appendix A
Procedure section 425.16. FX submitted declarations from
Ryan Murphy, a co-creator, executive producer, writer,
and director of Feud; Michael Zam, a screenwriter who
co-wrote a script called Best Actress on which Feud was
based in part; and Timothy Minear, an executive producer
and writer for Feud. Minear explained the writers on the
project created “imagined interviews” conducted at the
1978 Academy Awards as a “framing device” to introduce
viewers to Feud’s themes such as the unfair treatment of
women in Hollywood. Minear stated Feud’s writers based
the imagined interview on actual interviews de Havilland
had given over the years. Minear also explained that a
“docudrama” is a “dramatized retelling of history.”
FX also submitted a declaration from Stephanie
Gibbons, its president of marketing and promotion.
Gibbons stated FX had not used de Havilland’s photograph
in any advertising or promotion for the miniseries. Six of
44 video advertisements included pictures of Zeta-Jones;
none of these used de Havilland’s name. Gibbons explained
that Zeta-Jones is a famous actress whom FX thought
viewers would want to watch.
FX submitted the declaration of James Berkley, a
research analyst for FX’s law firm, together with 59
exhibits. These included books, newspaper and magazine
articles, and videos of de Havilland appearing as a guest on
talk shows. In a number of the articles and video clips, de
Havilland granted interviews and made statements about
other actors, including her sister Joan Fontaine. In a July
2016 Associated Press interview—on the occasion of her
100th birthday—de Havilland said this about her sister:
“Dragon Lady, as I eventually decided to call her, was a
7a
Appendix A
brilliant, multi-talented person, but with an astigmatism
in her perception of people and events which often caused
her to react in an unfair and even injurious way.”
b.
De Havilland’s opposition, declarations, and
exhibits
De Havilland filed an opposition on September 15,
2017. She asserted Feud was a “commercial production.”
De Havilland attached a declaration from Mark Roesler,
the chairman of Celebrity Valuations. Roesler declared he
had represented many celebrities over the years, including
Richard Nixon. Roesler calculated the fair market value
of FX’s “use” in Feud of de Havilland’s “rights” to be
between $1.38 and $2.1 million. This works out to between
approximately $84,000 and $127,000 per minute of time
that Zeta-Jones appears on screen.
De Havilland also submitted declarations from David
Ladd and Cort Casady. Both men stated they have many
years of experience in the entertainment business. In
nearly identical language both Ladd and Casady declared
the “standard practice” in the film and television industry
is to obtain consent from any “well-known living person”
before her or his “name, identity, character[,] or image”
can be used in a film or television program. 5 In addition,
de Havilland submitted a declaration from her attorney
attaching posts from Instagram and Facebook with
photographs of Zeta-Jones as de Havilland.
5. Casady stated consent “must be obtained.” Ladd stated
consent “should be obtained.” Ladd added that, “[i]f consent could
not be obtained,” then the producers could use only “authenticated
facts previously disclosed” by the person herself or himself.
8a
Appendix A
c.
FX’s reply
FX filed a reply on September 22, 2017. FX submitted
a declaration from Casey LaLonde, Joan Crawford’s
grandson. LaLonde stated an actor portraying him as a
child appears in Feud. LaLonde neither granted consent
nor received any compensation for this portrayal. LaLonde
described the experience of seeing an actor portraying
him in the docudrama as “a wonderful surprise.” LaLonde
also made available to Feud’s producers home movies
of Crawford. He stated the producers did not pay any
compensation to Crawford’s family for their portrayal
of her. LaLonde declared that de Havilland’s attorney’s
statement to USA Today that Feud’s producers had
compensated Crawford’s family for the use of her identity
was untrue.
d.
The hearing on the motion and the trial court’s
ruling
On September 29, 2017, the parties argued the motion.
The superior court issued a 16-page written decision.
The court denied the anti-SLAPP motion as to all four
causes of action. The court first found the docudrama
constitutes speech in a public forum, involving an issue of
public concern. Noting the burden then shifts to plaintiff
to show a probability of prevailing on her claims, the court
concluded de Havilland had sufficiently met her burden
of proof. The court stated de Havilland had to show only
that her lawsuit had minimal merit.
9a
Appendix A
The trial court said de Havilland had met her burden
on her right of publicity claims “because no compensation
was given despite using her name and likeness.” The court,
citing Ladd’s declaration, stated, “[I]t is standard in the
industry, according to Plaintiff, to negotiate compensation
prior to the use of a person’s likeness.” The court said there
was “nothing transformative about [Feud]” within the
meaning of Comedy III because FX admitted it “wanted to
make the appearance of [de Havilland] as real as possible.”
On de Havilland’s false light claim, the court noted de
Havilland asserted (1) she had not given an interview at
the 1978 Academy Awards; (2) she had not referred to her
sister Joan Fontaine as “my bitch sister”; (3) she never
told a director she did not “play bitches” and he should
call her sister; and (4) when asked where the alcohol in
Frank Sinatra’s dressing room had gone, she never said
“Frank must have drunk it all.” Rejecting FX’s argument
that these portrayals are not defamatory, the court said,
“[I]n considering the show as a whole, the Court finds [de
Havilland] has sufficiently met her burden of proof in that
a viewer of the television show, which is represented to be
based on historical facts, may think [de Havilland] to be
a gossip who uses vulgar terms about other individuals,
including her sister.” Citing the Casady declaration, the
court stated, “For a celebrity, this could have a significant
economic impact.”
As to actual malice (de Havilland did not dispute she
is a public figure),6 the court concluded de Havilland had
6. De Havilland again concedes on appeal that she is a public
figure.
10a
Appendix A
“submitted sufficient evidence that [FX] presented scenes
‘with knowledge that [they were] false or with reckless
disregard of whether [they were] false or not.’” The
court seemed unreceptive to FX’s argument that “false”
is different from “dramatized.” Finally, the trial court
rejected FX’s argument that de Havilland’s fourth cause
of action for “unjust enrichment” was not a cause of action.
DISCUSSION
1. California’s anti-SLAPP statute and our standard
of review on appeal
A special motion to strike under the anti-SLAPP
statute, Code of Civil Procedure section 425.16, “‘is a
procedural remedy to dispose of lawsuits brought to chill
the valid exercise of a party’s constitutional right of petition
or free speech. [Citation.] The purpose of the anti-SLAPP
statute is to encourage participation in matters of public
significance and prevent meritless litigation designed to
chill the exercise of First Amendment rights. [Citation.]
The Legislature has declared that the statute must be
“construed broadly” to that end.’” (Hawran v. Hixson
(2012) 209 Cal.App.4th 256, 268 [147 Cal. Rptr. 3d 88]; see
also Code Civ. Proc., § 425.16, subd. (a); cf. Bradbury v.
Superior Court (1996) 49 Cal.App.4th 1108, 1114, fn. 3 [57
Cal. Rptr. 2d 207] [an appellate court, whenever possible,
should interpret the 1st Amend. and § 425.16 in a manner
“favorable to the exercise of freedom of speech, not its
curtailment”].) This legislative directive “is expressed in
unambiguous terms.” (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1119 [81 Cal. Rptr. 2d
11a
Appendix A
471, 969 P.2d 564].) “[T]he broad construction expressly
called for in subdivision (a) of section 425.16 is desirable
from the standpoint of judicial efficiency … .” (Id. at pp.
1121–1122.)
“Resolution of an anti-SLAPP motion ‘requires
the court to engage in a two-step process.’” (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733
[3 Cal. Rptr. 3d 636, 74 P.3d 737].) First, the defendant
must show the conduct underlying the plaintiff’s cause of
action arises from the defendant’s constitutional rights of
free speech or petition in connection with a public issue.
(Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 67 [124 Cal. Rptr. 2d 507, 52 P.3d 685].) If
the defendant satisfies this prong, the burden shifts to
the plaintiff to prove she has a legally sufficient claim
and to prove with admissible evidence a probability that
she will prevail on the claim. (Wilson v. Parker, Covert
& Chidester (2002) 28 Cal.4th 811, 821 [123 Cal. Rptr. 2d
19, 50 P.3d 733]; see also HMS Capital, Inc. v. Lawyers
Title Co. (2004) 118 Cal.App.4th 204, 212 [12 Cal. Rptr.
3d 786] [“In opposing an anti-SLAPP motion, the plaintiff
cannot rely on the allegations of the complaint, but must
produce evidence that would be admissible at trial.”].) “In
deciding the question of potential merit, the trial court
considers the pleadings and evidentiary submissions of
both the plaintiff and the defendant (§ 425.16, subd. (b)
(2)); though the court does not weigh the credibility or
comparative probative strength of competing evidence,
it should grant the motion if, as a matter of law, the
defendant’s evidence supporting the motion defeats the
plaintiff’s attempt to establish evidentiary support for
12a
Appendix A
the claim.” (Wilson v. Parker, at p. 821; see also Jackson
v. Mayweather (2017) 10 Cal.App.5th 1240, 1251 [217 Cal.
Rptr. 3d 234] (Jackson).) “[O]n its face the [anti-SLAPP]
statute contemplates consideration of the substantive
merits of the plaintiff’s complaint, as well as all available
defenses to it, including, but not limited to constitutional
defenses. This broad approach is required not only by the
language of the statute, but by the policy reasons [that]
gave rise to our anti-SLAPP statute.” (Traditional Cat
Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398
[13 Cal. Rptr. 3d 353].)
To satisfy this prong-two showing, the plaintiff must
present credible evidence that satisfies the standard of
proof required by the substantive law of the cause of action
the anti-SLAPP motion challenges. Generally, a plaintiff’s
claims need only have “‘minimal merit’” to survive an
anti-SLAPP motion. (Navellier v. Sletten (2002) 29 Cal.4th
82, 95, fn. 11 [124 Cal. Rptr. 2d 530, 52 P.3d 703].) But
when the plaintiff is a public figure, to establish a prima
facie case she must demonstrate by clear and convincing
evidence that the defendant acted with “actual malice.”
(Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146,
1162, 1169–1172 [15 Cal. Rptr. 3d 100] [trial court should
have granted anti-SLAPP motion where limited purpose
public figure plaintiff “failed to show a probability of
proving actual malice by clear and convincing evidence”];
see Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1451,
1454 [83 Cal. Rptr. 2d 443] [to meet anti-SLAPP statute’s
requirement that he show he would “probably” prevail on
his claim, public figure plaintiff “was required to ‘show
a likelihood that he could produce clear and convincing
13a
Appendix A
evidence’” that defendant made statements with actual
malice]; Beilenson v. Superior Court (1996) 44 Cal.
App.4th 944, 950 [52 Cal. Rptr. 2d 357] [“The clear and
convincing standard requires that the evidence be such as
to command the unhesitating assent of every reasonable
mind. [Citation.] Actual malice cannot be implied and
must be proven by direct evidence”]; see also Makaeff v.
Trump University, LLC (9th Cir. 2013) 715 F.3d 254, 271
[whether plaintiff has “reasonable probability of proving,
by clear and convincing evidence, that [defendant] made
her critical statements with actual malice” is “inherently
fact-intensive question”].) “The requirement that a public
figure plaintiff prove malice by clear and convincing
evidence arises from First Amendment concerns that
freedom of expression be provided ‘the “breathing space”
that [it] “need[s] … to survive … .”’” (Christian Research,
supra, 148 Cal.App.4th at p. 82, quoting New York Times
Co. v. Sullivan (1964) 376 U.S. 254, 272 [11 L.Ed. 2d 686,
84 S. Ct. 710].)
“An order denying an anti-SLAPP special motion
to strike is appealable under [Code of Civil Procedure]
sections 425.16, subdivision (i), and 904.1.” (Christian
Research, supra, 148 Cal.App.4th at p. 79.) Our review of
the trial court’s order denying FX’s motion “is de novo,
and entails an independent review of the entire record.”
(City of Costa Mesa v. D’Alessio Investments, LLC (2013)
214 Cal.App.4th 358, 371 [154 Cal. Rptr. 3d 698]; see also
Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408 [138
Cal. Rptr. 3d 464] [“An appellate court reviews an order
denying an anti-SLAPP motion from a clean slate”].)
14a
Appendix A
2. De Havilland concedes FX met the first prong of
the two-step process
The trial court found that de Havilland’s lawsuit arises
from FX’s exercise of its free speech rights on a topic of
public interest in a public forum. De Havilland presented
no argument on that issue in her opposition brief. At oral
argument, her counsel conceded FX has met the first
prong of the anti-SLAPP analysis.
3. The First Amendment protects FX’s portrayal of de
Havilland in a docudrama without her permission
a.
We question whether a docudrama is a product
or merchandise within the meaning of Civil
Code section 3344
As noted, de Havilland alleges causes of action
for violation of the statutory right of publicity, Civil
Code section 3344, and for the common law tort of
misappropriation. Section 3344, subdivision (a) provides,
in part, “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.” (Italics added.) Misappropriation is one of
the four branches of the privacy tort identified by Dean
William Prosser. (Prosser, Privacy (1960) 48 Cal. L.Rev.
383, 389; see generally 5 Witkin, Summary of Cal. Law
15a
Appendix A
(11th ed. 2017) Torts, § 756, p. 1043.) The Restatement
Second of Torts adopted Prosser’s classification. (Hill v.
National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 24
[26 Cal. Rptr. 2d 834, 865 P.2d 633].) “California common
law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Ibid.)
The Restatement defines the misappropriation tort: “One
who appropriates to his own use or benefit the name or
likeness of another is subject to liability to the other for
invasion of his privacy.” (Rest.2d Torts, § 652C.)
De Havilland’s statutory claim raises a preliminary
question of whether the portrayal of a real person in a
television program (or a book, play, or film) constitutes
the “use” of that person’s name or “likeness” “on or
in” a product, merchandise, or good. Books, films, and
television shows are “things” but are they “merchandise”
or “products”? Many of the cases in this area involve
products and merchandise such as T-shirts and lithographs
(Comedy III, supra, 25 Cal.4th 387), greeting cards
(Hilton v. Hallmark Cards (9th Cir. 2010) 599 F.3d 894),
and video games (Davis v. Electronic Arts, Inc. (9th
Cir. 2015) 775 F.3d 1172; In re NCAA Student-Athlete
Name & Likeness Licensing Litigation (9th Cir. 2013)
724 F.3d 1268; Kirby v. Sega of America, Inc. (2006) 144
Cal.App.4th 47 [50 Cal. Rptr. 3d 607]), or advertisements
for products and merchandise. (See, e.g., Newcombe v.
Adolf Coors Co. (9th Cir. 1998) 157 F.3d 686, 691–694
[beer advertisement]; Waits v. Frito-Lay, Inc. (9th
Cir. 1992) 978 F.2d 1093 [advertisement for SalsaRio
Doritos]; Midler v. Ford Motor Co. (9th Cir. 1988) 849
F.2d 460 [advertisement for Ford Lincoln Mercury]; cf.
16a
Appendix A
CACI No. 1804A [to establish violation of Civ. Code,
§ 3344, plaintiff must prove (among other elements) that
defendant knowingly used plaintiff’s name or likeness
“on merchandise/ [or] to advertise or sell [describe what
is being advertised or sold]” and that defendant’s use of
plaintiff’s name or likeness “was directly connected to
[defendant’s] commercial purpose.”].)
The United States Court of Appeals for the Ninth
Circuit addressed this question in a recent case, Sarver
v. Chartier (9th Cir. 2016) 813 F.3d 891 (Sarver). A United
States Army sergeant who had served in Iraq sued the
screenwriter, director, and producer of the motion picture
The Hurt Locker (Summit Entertainment 2009). The
plaintiff alleged “he did not consent to [the] use [of his
life and experiences in the film] and that several scenes
in the film falsely portray him in a way that has harmed
his reputation.” (Sarver, at p. 896.) He asserted causes
of action for (among other torts) misappropriation of his
likeness and violation of the right of publicity, false light
invasion of privacy, and defamation. (Ibid.) The appellate
court affirmed the district court’s dismissal of the lawsuit
under our anti-SLAPP statute. The court observed
“The Hurt Locker is not speech proposing a commercial
transaction.” (Id. at p. 905.) The court discussed Zacchini
v. Scripps-Howard Broadcasting Co. (1977) 433 U.S.
562 [53 L.Ed.2d 965, 97 S. Ct. 2849] (Zacchini), the
only United States Supreme Court case to “review[]
the constitutionality of a state’s right of publicity law.”
(Sarver, at p. 903.) An Ohio television station broadcast 15
seconds of Zacchini performing his “human cannonball”
act. Zacchini sued for violation of his right of publicity
17a
Appendix A
under Ohio law. The court concluded the First Amendment
interests in broadcasting Zacchini’s entire act—rather
than, for example, his name or picture—was minimal.
(Zacchini, at pp. 563–564, 573.) The Sarver court noted
that, in the intervening forty years, the “Court has not
revisited the question of when a state’s right of publicity
law is consistent with the First Amendment.” (Sarver, at
p. 904; see also Matthews v. Wozencraft (5th Cir. 1994) 15
F.3d 432, 439 (Matthews) [“‘Courts long ago recognized
that a celebrity’s right of publicity does not preclude others
from incorporating a person’s name, features or biography
in a literary work, motion picture, news or entertainment
story. Only the use of an individual’s identity in advertising
infringes on the persona.’”].)
We need not decide this question, however, because
Feud is constitutionally protected in any event.
b.
Assuming a docudrama is a “use” for purposes
of the right of publicity, the First Amendment
protects Feud
Assuming for argument’s sake that a television
program is a “product, merchandise, or good” and that
Zeta-Jones’s portrayal of de Havilland constitutes a “use”
of de Havilland’s name or likeness within the scope of both
the right of publicity statute and the misappropriation
tort, we come to FX’s First Amendment defense. Nearly
40 years ago, the Chief Justice of our Supreme Court
addressed this issue in Guglielmi v. Spelling-Goldberg
Productions (1979) 25 Cal.3d 860 [160 Cal. Rptr. 352,
603 P.2d 454] (Guglielmi). The case involved a television
18a
Appendix A
program that was a “fictionalized version” of the life of
actor Rudolph Valentino. Valentino had died years earlier
and his nephew Guglielmi sued, alleging misappropriation
of Valentino’s right of publicity and seeking damages and
injunctive relief. The Court affirmed the dismissal of the
complaint on the ground that, at the time, the right of
publicity was not descendible to heirs.
In a concurring opinion joined by three other justices,
the Chief Justice framed the issue as whether the use of a
celebrity’s “name and likeness in a fictional film exhibited
on television constitutes an actionable infringement of that
person’s right of publicity.” (Guglielmi, supra, 25 Cal.3d
at p. 862.) She concluded, “It is clear that [Guglielmi’s]
action cannot be maintained.” (Ibid.) The Chief Justice
noted Guglielmi alleged the television production company
“knew that the film did not truthfully portray Valentino’s
life.” (Ibid.) She summarized Guglielmi’s contentions: The
film was not entitled to constitutional protection because
the producers “incorporated Valentino’s name and likeness
in: (1) a work of fiction, (2) for financial gain, (3) knowing
that such film falsely portrayed Valentino’s life.” (Id. at
p. 865.) The Chief Justice noted Guglielmi’s argument
“reveal[ed] a fundamental misconception of the nature of
the constitutional guarantees of free expression,” adding,
“Our courts have often observed that entertainment
is entitled to the same constitutional protection as the
exposition of ideas.” (Id. at pp. 865–867.) “Thus,” the
justice said, “no distinction may be drawn in this context
between fictional and factual accounts of Valentino’s life.”
(Id. at p. 868.) “[T]ruthful and fictional accounts” “have
equal constitutional stature.” (Id. at p. 871.) The Chief
19a
Appendix A
Justice “readily dismissed” Guglielmi’s next argument,
stating, “The First Amendment is not limited to those
who publish without charge.” (Id. at p. 868.)
The Chief Justice 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.” (Guglielmi, supra, 25 Cal.3d at pp.
869–870.)
In the nearly four decades since, our Supreme Court
and Courts of Appeal have continued to cite Guglielmi
with approval. (See, e.g., Comedy III, supra, 25 Cal.4th at
pp. 396–398, 401–402, 406; Winter v. DC Comics (2003) 30
Cal.4th 881, 887–888, 891 [134 Cal. Rptr. 2d 634, 69 P.3d
473] (Winter); Tamkin v. CBS Broadcasting, Inc. (2011)
193 Cal.App.4th 133, 145 [122 Cal. Rptr. 3d 264] (Tamkin);
Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280
[55 Cal. Rptr. 3d 544]; Polydoros v. Twentieth Century
Fox Film Corp. (1997) 67 Cal.App.4th 318, 324–325 [79
Cal. Rptr. 2d 207] (Polydoros).) Federal courts applying
California law have as well. (See, e.g., Sarver, supra, 813
F.3d at p. 905, fn. 9 [noting Guglielmi post-dated Zacchini
and the four justices “cautioned that the defendants’
fictionalized portrayal of Valentino’s life was entitled to
greater First Amendment protection than the conduct in
Zacchini”].)
20a
Appendix A
Feud is as constitutionally protected as was the film
in Sarver, The Hurt Locker. As with that expressive
work, Feud “is speech that is fully protected by the First
Amendment, which safeguards the storytellers and artists
who take the raw materials of life—including the stories
of real individuals, ordinary or extraordinary—and
transform them into art, be it articles, books, movies, or
plays.” (Sarver, supra, 813 F.3d at p. 905; see also Dora
v. Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 542
[18 Cal. Rptr. 2d 790] [producer of documentary about
surfers in Malibu was entitled to judgment on surfer’s
claims for violation of common law and statutory right
of publicity; “[w]hether [Dora] is considered a celebrity
or not, whether he is seeking damages for injury to his
feelings or for the commercial value of his name and
likeness, … the public interest in the subject matter of the
program gives rise to a constitutional protection against
liability”]; cf. Polydoros, supra, 67 Cal.App.4th at pp.
322–325 [“Guglielmi unequivocally prevent[ed] [plaintiff]
from proceeding on his claim for commercial appropriation
of identity” against writer and director of fictional film
with character that resembled plaintiff as a child; “[t]o
succeed in his claims, [plaintiff] must establish a direct
connection between the use of his name or likeness and a
commercial purpose”]; Rosa & Raymon Parks Institute
for Self Development v. Target Corp. (11th Cir. 2016) 812
F.3d 824, 826 (Rosa & Raymond Parks) [books, movie,
and plaque depicting civil rights pioneer Rosa Parks
were protected under Michigan’s constitution]; Seale v.
Gramercy Pictures (E.D.Pa. 1996) 949 F.Supp. 331, 337
(Seale) [1st Amend. protected filmmakers’ use of name
and likeness of Black Panther Party’s cofounder; “the
21a
Appendix A
creation, production, and promotion of a motion picture
and history book [that] integrate[d] fictitious people and
events with the historical people and events surrounding
the emergence of the Black Panther Party in the late
1960’s” constituted 1st Amend. expression and was not
for a commercial purpose]; Matthews, supra, 15 F.3d at p.
440 [1st Amend. protected book and movie about narcotics
officers from misappropriation and false light claims; “[i]t
is immaterial whether [the book] ‘is viewed as an historical
or a fictional work,’ [citation], so long as it is not ‘simply a
disguised commercial advertisement for the sale of goods
or services’”].)7
That Feud’s creators did not purchase or otherwise
procure de Havilland’s “rights” to her name or likeness
does not change this analysis. Producers of films and
television programs may enter into agreements with
individuals portrayed in those works for a variety of
reasons, including access to the person’s recollections
7. De Havilland relies on Eastwood v. Superior Court (1983)
149 Cal.App.3d 409 [198 Cal. Rptr. 342]. That case—which arose
from an unusual set of facts—does not assist our analysis. A tabloid
published an article about the supposed involvement of famous actor
Clint Eastwood in a “love triangle.” Eastwood alleged the article was
entirely false. (Id. at p. 414.) The court of appeal, citing Zacchini,
held that Eastwood could proceed with his right of publicity claims.
(Id. at p. 423.) Here, by contrast, the expressive work at issue is an
eight-hour docudrama of which the de Havilland character is but
a small part. Moreover, as discussed below, the scenes and lines of
which de Havilland complains are permissible literary license and,
in any event, not highly offensive to a reasonable person. Unlike
Eastwood, Feud’s creators did not make out of whole cloth an entirely
false “article” for economic gain.
22a
Appendix A
or “story” the producers would not otherwise have, or
a desire to avoid litigation for a reasonable fee. But the
First Amendment simply does not require such acquisition
agreements. (Polydoros, supra, 67 Cal.App.4th at p. 326
[“[t]he industry custom of obtaining ‘clearance’ establishes
nothing, other than the unfortunate reality that many
filmmakers may deem it wise to pay a small sum up front
for a written consent to avoid later having to spend a
small fortune to defend unmeritorious lawsuits such as
this one”]; cf. Rosa & Raymond Parks, supra, 812 F.3d
at p. 832 [privilege based on state constitution’s free
speech guarantee was not “contingent on paying a fee”].)
The creators of The People v. O.J. Simpson: American
Crime Story can portray trial Judge Lance Ito without
acquiring his rights. Fruitvale Station’s (Weinstein Co.
2013) writer and director Ryan Coogler can portray Bay
Area Rapid Transit officer Johannes Mehserle without
acquiring his rights. HBO can portray Sarah Palin in
Game Change (HBO 2013) without acquiring her rights.
There are myriad additional examples.
De Havilland also contends the fictitious interview “is
structured as an endorsement of [Feud].” The miniseries
itself does not support this contention. Nothing Zeta-Jones
says or does as de Havilland in the docudrama suggests—
much less constitutes—an “endorsement” of the work by
de Havilland. De Havilland’s argument seems to be that,
whenever a filmmaker includes a character based on a
real person, that inclusion implies an “endorsement” of
the film or program by that real person. We have found
no case authority to support this novel argument.
23a
Appendix A
Nor does the use of de Havilland’s name—along with
photographs of Zeta-Jones—in social media promotion for
the miniseries support de Havilland’s claims for violation
of her right of publicity. Constitutional protection for an
expressive work such as Feud “‘extends to the truthful
use of a public figure’s name and likeness in advertising
[that] is merely an adjunct of the protected publication and
promotes only the protected publication.’” (Montana v.
San Jose Mercury News, Inc. (1995) 34 Cal.App.4th 790,
797 [40 Cal. Rptr. 2d 639] [1st Amend. protected posters
that reproduced newspaper stories and photographs
of famous quarterback “for two distinct reasons: first,
because the posters themselves report newsworthy items
of public interest, and second, because a newspaper has
a constitutional right to promote itself by reproducing
its originally protected articles or photographs”].)
“[U]se of a person’s name and likeness to advertise a novel,
play, or motion picture concerning that individual is not
actionable as an infringement of the right of publicity.”
(Seale, supra, 949 F.Supp. at p. 336; see also Guglielmi,
supra, 25 Cal.3d at pp. 872–873.)
c.
In any event, Feud’s portrayal of de Havilland
is transformative
The parties spend considerable time discussing the
“transformative” test set forth in Comedy III. There, a
company that owns the rights under Civil Code former
section 9908 to The Three Stooges (all three are deceased)
8. Civil Code former section 990 has since been renumbered as
Civil Code section 3344.1. Enacted in 1984, the statute essentially
provides a descendible right of publicity. In language similar to
24a
Appendix A
sued an artist who had made a charcoal drawing of The
Three Stooges, put it on T-shirts and lithographs, and sold
those items. The Supreme Court noted the statute imposes
liability on a person who uses a deceased personality’s
name or likeness “either (1) ‘on or in’ a product, or (2) in
‘advertising or selling’ a product.” (Comedy III, supra,
25 Cal.4th at p. 395.) The T-shirts and lithographs were,
the court said, “tangible personal property,” “consisting
of fabric and ink” and “paper and ink.” (Ibid.) The court
found the artist’s drawing was an “expressive work[] and
not an advertisement for or endorsement of a product.”
(Id. at p. 396.) But, the court continued, “[A] celebrity’s
heirs and assigns have a legitimate protectible interest in
exploiting the value to be obtained from merchandising
the celebrity’s image.” (Id. at p. 400, italics added.)
To resolve this “difficult issue” (Comedy III, supra,
25 Cal.4th at p. 396), the court borrowed a concept from
copyright law: “‘whether and to what extent the new work
[the product bearing the deceased personality’s likeness]
is “transformative”’” (id. at p. 404). The court held: “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
section 3344 governing the rights of living persons, section 3344.1
gives a “deceased personality’s” heirs and their assignees a cause
of action against someone who uses the deceased person’s “name,
voice, signature, photograph, or likeness … on or in products,
merchandise, or goods, or for purposes of advertising or selling, or
soliciting purchases of, products, merchandise, goods, or services,
without prior consent.” (Civ. Code, § 3344.1, subd. (a)(1).)
25a
Appendix A
interest in protecting the fruits of artistic labor outweighs
the expressive interests of the imitative artist.” (Id. at p.
405, fn. omitted.) The court continued, “Another way of
stating the inquiry is whether the celebrity likeness is
one of the ‘raw materials’ from which an original work
is synthesized, or whether the depiction or imitation of
the celebrity is the very sum and substance of the work
in question.” (Id. at p. 406.) The court identified a “useful
… subsidiary inquiry:” “does the marketability and
economic value of the challenged work derive primarily
from the fame of the celebrity depicted? If this question
is answered in the negative, then there would generally
be no actionable right of publicity. 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.” (Id. at p. 407.) Applying its
“transformative” test to the sketch artist’s T-shirts and
lithographs, the court concluded the charcoal drawing
on the shirts and prints was a “literal, conventional
depiction[] of The Three Stooges” and therefore not
constitutionally protected. (Id. at p. 409.)
Comedy III’s “transformative” test makes sense when
applied to products and merchandise—“tangible personal
property,” in the Supreme Court’s words. (Comedy III,
supra, 25 Cal.4th at p. 395.) Lower courts have struggled
mightily, however, to figure out how to apply it to expressive
works such as films, plays, and television programs.9 The
9. Cf. Sar ver, supra, 813 F.3d at page 904, footnote 6
(unnecessary in The Hurt Locker case to reach affirmative defense
of “‘transformative use’”).
26a
Appendix A
trial court’s analysis here is a good example.10 The court
wrote, “[H]ere, because [FX] admit[s] that [it] wanted to
make the appearance of [de Havilland] as real as possible
… , there is nothing transformative about the docudrama.
Moreover, even if [FX] imagined conversations for the
sake of being creative, such does not make the show
transformative.”
We disagree. 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. The de
Havilland role, performed by Zeta-Jones, constitutes
about 4.2 percent of Feud. The docudrama tells the
story, in nearly eight hours, of the competition between
Hollywood’s leading ladies of the day, Bette Davis and Joan
Crawford, for film roles, attention, awards, and acclaim.
The miniseries tells many stories within the story as well:
Jack Warner’s demeaning and dismissive treatment of
director Robert Aldrich; Crawford’s and Davis’s struggles
with their personal relationships: husbands, partners,
and children; the obstacles faced by capable women like
Aldrich’s assistant Pauline Jameson who want to direct
10. Amici curiae, 22 constitutional law and intellectual property
law professors, note they “have serious reservations about the
[Comedy III] test [as the appropriate test for deciding the federal
question of whether and when the First Amendment protects against
right of publicity claims]—highlighted by the trial court’s struggle
to understand what was meant by a transformative use, and its …
reading of that test to devalue realistic uses in works of historical
fiction and biography.”
27a
Appendix A
motion pictures; and the refusal of powerful men in the
entertainment business to take women seriously, even
when their movies make money.
In the words of the Comedy III Court, Zeta-Jones’s
“celebrity likeness [of de Havilland] is one of the ‘raw
materials’ from which [the] original work [Feud] is
synthesized.” (Comedy III, supra, 25 Cal.4th at p. 406.)
Applying Comedy III’s “useful … subsidiary inquiry”
here, we 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. (Id. at p. 407.) Ryan Murphy
is a successful screenwriter, director, and producer who
counts among his credits the television series Glee and
the Emmy-award-winning miniseries The People v. O.J.
Simpson: American Crime Story. Accomplished writers
contributed to the script. Highly-regarded and awardwinning actors including Susan Sarandon, Jessica Lange,
Catherine Zeta-Jones, Stanley Tucci, Alfred Molina, Judy
Davis, and Kathy Bates performed in Feud. In short,
Feud constitutes “significant expression”—a story of two
Hollywood legends—of which the de Havilland character
is but a small part. While viewers may have “tuned in” to
see these actors and watch this Hollywood tale, there is no
evidence that de Havilland as a character was a significant
draw. (Cf. Johnson v. Harcourt, Brace, Jovanovich, Inc.
(1974) 43 Cal.App.3d 880, 895 [118 Cal. Rptr. 370] [use in
textbook of article about janitor who found and returned
large sum of money was not actionable misappropriation;
article was neither “a primary reason for the textbook”
28a
Appendix A
“nor was it a substantial factor in the students’ purchases
of the book”].)
4. De Havilland has not carried her burden of proving
with admissible evidence that she will probably
prevail on her false light claim
a.
The allegations of de Havilland’s complaint
In her third cause of action, de Havilland alleges
false light invasion of privacy. Though not entirely clear,11
the complaint seems to ground this claim in four scenes
or lines in Feud: (1) a fictionalized interview at the 1978
Academy Awards; (2) a reference by the de Havilland
character to her “bitch sister” in a private conversation
with the Bette Davis character; (3) a remark to the Aldrich
character that she “do[esn’t] do bitches” and he should
“call [her] sister” about a film role; and (4) a response to
the Davis character’s question (“where’s the booze?”) when
11. De Havilland’s complaint blends the allegations concerning
her right of publicity claims with those concerning her false light
claim. For example, de Havilland alleges the “fake interview” “put[]
false words [in her] mouth,” “misappropriated [her] name, likeness[,]
and identity without her permission and used them falsely in order
to exploit their own commercial interests,” and “create[d] the public
impression that she was a hypocrite, selling gossip in order to
promote herself at the Academy Awards.” In her third cause of action
for false light, de Havilland alleges that she “benefits financially
from the authorized use of her own name, likeness, and identity”
and that FX’s “misappropriation caused” her harm, and she prays
for a permanent injunction restraining FX “from continuing to
infringe [her] right of publicity.” To assist our analysis, we separate
de Havilland’s legal theories and address each one separately.
29a
Appendix A
the two are alone in Frank Sinatra’s dressing room that
“Frank must have drunk it all.”
b.
False light invasion of privacy and de
Havilland’s required showing
“‘False light is a species of invasion of privacy, based
on publicity that places a plaintiff before the public in a
false light that would be highly offensive to a reasonable
person, and where the defendant knew or acted in reckless
disregard as to the falsity of the publicized matter and the
false light in which the plaintiff would be placed.’” (Jackson,
supra, 10 Cal.App.5th at p. 1264.) “‘A “false light” claim,
like libel, exposes a person to hatred, contempt, ridicule,
or obloquy and assumes the audience will recognize it as
such.’” (Brodeur v. Atlas Entertainment, Inc. (2016) 248
Cal.App.4th 665, 678 [204 Cal. Rptr. 3d 483] (Brodeur).)
“In order to be actionable, the false light in which the
plaintiff is placed must be highly offensive to a reasonable
person.” (Fellows v. National Enquirer, Inc. (1986) 42
Cal.3d 234, 238 [228 Cal. Rptr. 215, 721 P.2d 97] (Fellows),
citing Rest.2d Torts, § 652E, p. 394.) “‘A “false light”
cause of action is in substance equivalent to a libel claim,
and should meet the same requirements of the libel claim,
including proof of malice.’” (Brodeur, at p. 678, quoting
Aisenson v. American Broadcasting Co. (1990) 220 Cal.
App.3d 146, 161 [269 Cal.Rptr. 379] (Aisenson).)
To defeat FX’s anti-SLAPP motion on her false light
claim, de Havilland, as a public figure, must demonstrate
a reasonable probability she can prove FX broadcast
statements that are (1) assertions of fact, (2) actually false
30a
Appendix A
or create a false impression about her, (3) highly offensive
to a reasonable person or defamatory, and (4) made with
actual malice. (Brodeur, supra, 248 Cal.App.4th at p.
678; see also Dodds v. American Broadcasting Co. (9th
Cir. 1998) 145 F.3d 1053 (Dodds); cf. Fellows, supra, 42
Cal.3d at p. 239 [“Although it is not necessary that the
plaintiff be defamed, publicity placing one in a highly
offensive false light will in most cases be defamatory as
well”].) We decide as a matter of law whether a reasonable
viewer would interpret Feud as conveying (a) statements
of fact that are (b) defamatory or highly offensive to a
reasonable person and (c) actually false or that convey
a false impression of de Havilland. (Couch v. San Juan
Unified School Dist. (1995) 33 Cal.App.4th 1491, 1497,
1500 [39 Cal. Rptr. 2d 848] (Couch) [“‘the proper focus
of judicial inquiry in [defamation and false light cases] is
simply whether the communication in question could be
reasonably be understood in a defamatory sense by those
who received it’”; “[t]his question must be resolved by
considering whether the reasonable or ‘average’ reader
would so interpret the material”]; Moyer v. Amador Valley
J. Union High School Dist. (1990) 225 Cal.App.3d 720, 724
[275 Cal. Rptr. 494]; see also Ollman v. Evans (D.C. Cir.
1984) 750 F.2d 970, 978 [questions as to privileges derived
from the 1st Amend. are to be decided as matters of law].)
“The Supreme Court and other courts have emphasized
that one must analyze a statement in its broad context to
determine whether it implies the assertion of an objective
fact.” (Partington v. Bugliosi (9th Cir. 1995) 56 F.3d 1147,
1153 (Partington).)
Accordingly, de Havilland must offer admissible
31a
Appendix A
evidence that the average, reasonable viewer of Feud,
watching the scenes in their original context, would have
understood them to convey statements of fact that she is
“a hypocrite, selling gossip” and a person who “speak[s] in
crude and vulgar terms about others.” (See Couch, supra,
33 Cal.App.4th at p. 1501.) She also must demonstrate that
these scenes and lines in Feud “‘would be highly offensive
to a reasonable person’” (Sarver, supra, 813 F.3d 891 at p.
907) a person “of ordinary sensibilities” (Aisenson, supra,
220 Cal.App.3d at p. 161). In light of the actual docudrama
itself—which we have viewed in its entirety—de Havilland
cannot meet her burden.
c.
The fictitious interview and the light-hearted
reference to Frank Sinatra’s drinking are
neither reasonably susceptible to a defamatory
meaning nor highly offensive to a reasonable
person
First, we question whether a reasonable viewer
would interpret Feud—a docudrama—as entirely
factual. Viewers are generally familiar with dramatized,
fact-based movies and miniseries in which scenes,
conversations, and even characters are fictionalized and
imagined. (See Masson v. New Yorker Magazine, Inc.
(1991) 501 U.S. 496, 513 [115 L.Ed.2d 447, 111 S.Ct. 2419]
(Masson) [“[A]n acknowledgment that the work is socalled docudrama or historical fiction … might indicate
that the quotations should not be interpreted as the actual
statements of the speaker to whom they are attributed”];
Partington, supra, 56 F.3d at pp. 1154–1155 [“the general
tenor of the docudrama also tends to negate the impression
32a
Appendix A
that the statements involved represented a false assertion
of objective fact”; docudramas “often rely heavily upon
dramatic interpretations of events and dialogue filled
with rhetorical flourishes”; most viewers of docudramas
“are aware by now that parts of such programs are more
fiction than fact”].)
In any event, assuming for argument’s sake that
the average, reasonable viewer would see the scenes in
question as literal statements of actual fact, de Havilland’s
false light claim fails nevertheless because Feud’s
depiction of her is not defamatory nor would it “highly
offend” a reasonable person. Granting an interview at
the Academy Awards is not conduct that would subject
a person to hatred, contempt, ridicule, or obloquy. (Cf.
Jackson, supra, 10 Cal.App.5th at pp. 1264–1265 [famous
boxer’s social media postings that he broke up with his
girlfriend because she had an abortion “did not expose
[girlfriend] to ‘hatred, contempt, ridicule, or obloquy’”].)
Feud’s writers explained in their declarations that they
employed the fictitious interview as a “framing device.” In
the interview, Zeta-Jones as de Havilland introduces the
theme of powerful men misusing women in Hollywood. She
says she was “furious” when she learned how Crawford
and Davis had been pitted against one another. Feud’s
producers wove this theme throughout the miniseries,
culminating in the title of the final episode: “You Mean All
This Time We Could Have Been Friends?” From time to
time in the docudrama—in brief segments12 —Zeta-Jones
12. The “interview” segments consume fewer than seven
minutes of the 392-minute miniseries, about 1.8 percent of the total
work.
33a
Appendix A
acts as a guide for the viewer through the tale, a Beatrice
to the viewer’s Dante.13
Zeta-Jones plays de Havilland as a wise, witty,
sometimes playful woman. That wit is the same as that
displayed by the real de Havilland when she appeared in
November 1973 on Merv Griffin’s talk show. When Griffin
asked de Havilland whether the relationship between a
talented director and a talented actress was like that of
husband and wife, de Havilland responded, “No. It’s like
lovers. It’s the next best thing to sex.” (On the talk show,
de Havilland also told Griffin that when she and Bette
Davis were both at Warner Brothers Davis “got all the
interesting parts” and that Davis deserved them.) De
Havilland’s wit and playfulness also are evident in her
book Every Frenchman Has One (Crown Archetype 2016),
published in 1961 and reissued in 2016 with an added “Q
and A” with de Havilland. De Havilland includes an entire
chapter on the habit of French men of urinating by the side
of the road, in public. Taken in its entirety and in context,
Zeta-Jones’s portrayal of de Havilland is overwhelmingly
positive. Indeed, with possible exception of Aldrich’s
assistant, aspiring director Pauline Jameson (played by
Alison Wright), Feud’s portrayal of de Havilland is the
most favorable of any character in the docudrama. The
work itself belies de Havilland’s contention that ZetaJones portrays de Havilland as a “vulgar gossip” and
“hypocrite.”
13. Alighieri, The Divine Comedy (1320).
34a
Appendix A
Nor is Zeta-Jones’s light-hearted, offhand remark as
de Havilland to her good friend Bette Davis while they are
alone in Sinatra’s dressing room that he must have drunk
the liquor defamatory or highly offensive to a reasonable
person. FX submitted evidence in support of its motion
that Sinatra’s fondness for alcohol was well known, and
Zeta-Jones’s comment to Sarandon would not subject
de Havilland to hatred, contempt, ridicule, or obloquy.
(Jackson, supra, 10 Cal.App.5th at pp. 1264–1265; see
also Sarver, supra, 813 F.3d at pp. 906–907 [“a reasonable
viewer of the film would be left with the conclusion that the
character [Sarver says is him] was a heroic figure, albeit
one struggling with certain internal conflicts”; “even if
the film’s portrayal of Sarver were somehow false, such
depiction certainly would not ‘highly offend’ a reasonable
person”].)
d.
The “bitch” remarks—when de Havilland’s
actual words were “dragon lady”—are not
highly offensive to a reasonable person
and are, in addition, substantially truthful
characterizations of her actual words
“‘California law permits the defense of substantial
truth,’ and thus a defendant is not liable ‘“if the substance
of the charge be proved true … .”’ ‘Put another way, the
statement is not considered false unless it “would have a
different effect on the mind of the reader from that which
the … truth would have produced.”’” (Carver v. Bonds
(2005) 135 Cal.App.4th 328, 344–345 [37 Cal. Rptr. 3d
480], quoting Masson, supra, 501 U.S. at pp. 516–517; see
also Jackson, supra, 10 Cal.App.5th at p. 1262; Gilbert
35a
Appendix A
v. Sykes (2007) 147 Cal.App.4th 13, 28 [53 Cal. Rptr. 3d
752] [“‘“it is sufficient if the substance, the gist, the sting
of the libelous charge be justified”’”].)
In Feud, Zeta-Jones uses the word “bitch” twice. In
the fifth episode, Sarandon, as Davis, calls Zeta-Jones, as
de Havilland, who is living in Paris. The two close friends
have a private telephone conversation. Sarandon complains
that Crawford “sets [her] off,” and then refers to de
Havilland’s well-known estrangement from her sister Joan
Fontaine. Zeta-Jones tells Sarandon her “bitch sister”
has started telling the press that she broke Fontaine’s
collarbone when they were children. The second use of the
word comes in the seventh episode when Sarandon and
Alfred Molina, playing Robert Aldrich, call de Havilland
in Paris to ask her to replace Crawford as cousin Miriam
in Hush … Hush, Sweet Charlotte (Twentieth Century
Fox 1964). Molina tells Zeta-Jones that the role is not a
victim but a “villainess.” Zeta-Jones responds, “Oh, no.
I don’t do bitches. They make me so unhappy.” She then
adds, “You should call my sister.”14
In its motion to strike, FX submitted declarations
from Ryan Murphy and Timothy Minear, who both
wrote parts of Feud. Both men were familiar with the
well-publicized lifelong animosity between de Havilland
and her sister Joan Fontaine. Murphy wrote the scene in
which Zeta-Jones uses the words “my bitch sister” on the
telephone with Sarandon. Ryan declared he used the word
14. De Havilland eventually accepted the role of cousin Miriam
in Hush … Hush, Sweet Charlotte.
36a
Appendix A
“bitch” “because, in [his] mind, the terms dragon lady and
bitch generally have the same meaning, but ‘bitch’ would
be more recognizable to the audience than ‘Dragon Lady.’”
Similarly, Minear declared Feud’s writers “thought ‘bitch’
was more mainstream and would be better understood by
the modern audiences than ‘Dragon Lady.’”
Had Feud’s creators had Zeta-Jones refer to Fontaine
as “my dragon lady sister,” the “effect on the mind of the
reader” would not have been appreciably different. Nor
would a line by the de Havilland character, “Oh, no. I don’t
do dragon ladies. They make me so unhappy. You should
call my sister.”15 “[W]e decline ‘“to dissect the creative
process”’ … .” (Brodeur, supra, 248 Cal.App.4th at p. 677,
quoting Tamkin, supra, 193 Cal.App.4th at p. 144.) “‘“We
must not permit juries to dissect the creative process in
order to determine what was necessary to achieve the
final product and what was not, and to impose liability …
for that portion deemed unnecessary. Creativity is, by its
nature, creative.”’” (Brodeur at p. 675, quoting Tamkin,
supra, 193 Cal.App.4th at pp. 144–145.)
e.
De Havilland has not demonstrated she can
prove by clear and convincing evidence that
Feud’s creators acted with actual malice
De Havilland does not dispute that she is a public
figure. Her attorneys describe her as “a living legend”
15. Feud writer Minear notes the first part of de Havilland’s
telephone conversation with Aldrich was reported in Shaun
Considine’s book, Bette & Joan: The Divine Feud, first published in
1989 and reissued twice since.
37a
Appendix A
and “an internationally-known celebrity.” Accordingly,
the Constitution requires de Havilland to prove by clear
and convincing evidence that FX “knew the [docudrama]
would create a false impression about [her] or acted with
reckless disregard for the truth.” (CACI No. 1802.)
When the expressive work at issue is fiction, or
a combination of fact and fiction, the “actual malice”
analysis takes on a further wrinkle. De Havilland
argues that, because she did not grant an interview at
the 1978 Academy Awards or make the “bitch sister”
or “Sinatra drank the alcohol” remarks to Bette Davis,
Feud’s creators acted with actual malice. But fiction is
by definition untrue. It is imagined, madeup. Put more
starkly, it is false. Publishing a fictitious work about a
real person cannot mean the author, by virtue of writing
fiction, has acted with actual malice.
Recognizing this, in cases where the claimed highly
offensive or defamatory aspect of the portrayal is implied,
courts have required plaintiffs to show that the defendant
“‘intended to convey the defamatory impression.’”
(Dodds, supra, 145 F.3d at pp. 1063–1064.) De Havilland
must demonstrate “that [FX] either deliberately cast
[her] statements in an equivocal fashion in the hope of
insinuating a defamatory import to the reader, or that
[it] knew or acted in reckless disregard of whether [its]
words would be interpreted by the average reader as
defamatory statements of fact.” (Good Government
Group of Seal Beach, Inc. v. Superior Court (1978) 22
Cal.3d 672, 684 [150 Cal. Rptr. 258, 586 P.2d 572] (Good
Government Group).) Moreover, because actual malice
38a
Appendix A
is a “deliberately subjective” test, liability cannot be
imposed for an implication that merely “‘should have been
foreseen.’” (Newton v. National Broadcasting Co., Inc.
(9th Cir. 1990) 930 F.2d 662, 680.)
As discussed above, we conclude Zeta-Jones’s
portrayal of de Havilland in Feud is not highly offensive
to a reasonable person as a matter of law. Even if it were,
however, de Havilland has not demonstrated that she can
prove actual malice by clear and convincing evidence. In
his sworn declaration, Murphy stated he intended ZetaJones’s portrayal of de Havilland to be that of “a wise,
respectful friend and counselor to Bette Davis, and a
Hollywood icon with a unique perspective on the past.”
5. De Havilland’s cause of action for unjust enrichment
cannot proceed
De Havilland’s fourth cause of action, entitled “Unjust
Enrichment,” alleges FX has “received unjust financial
and economic benefits at [her] expense,” including “the
value of the use of [her] name, image[,] and identity for
[FX’s] commercial purposes.” De Havilland asks for FX’s
“gross revenues” and a constructive trust.
“Unjust enrichment is not a cause of action”; it is “just
a restitution claim.” (Hill v. Roll Internat. Corp. (2011) 195
Cal.App.4th 1295, 1307 [128 Cal. Rptr. 3d 109].) Because
de Havilland’s right of publicity and false light claims fail,
her unjust enrichment claim fails as well. “There being no
actionable wrong, there is no basis for the relief.” (Ibid.)
39a
Appendix A
CONCLUSION
The trial court’s ruling leaves authors, filmmakers,
playwrights, and television producers in a Catch-22.16
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. “[T]he right of publicity cannot, consistent
with the First Amendment, be a right to control the
celebrity’s image by censoring disagreeable portrayals.”
(Comedy III, supra, 25 Cal.4th at p. 403.) FX’s evidence
here—especially the docudrama itself—establishes as a
matter of law that de Havilland cannot prevail. (Hall v.
Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1346 [63
Cal. Rptr. 3d 798].) “‘[B]ecause unnecessarily protracted
litigation would have a chilling effect upon the exercise
of First Amendment rights, speedy resolution of cases
involving free speech is desirable.’” (Winter, supra, 30
Cal.4th at p. 891, quoting Good Government Group, supra,
22 Cal.3d at p. 685.)
DISPOSITION
The order denying the motion to strike is reversed.
The trial court is directed to enter a new and different
order granting the motion and awarding defendants their
attorney fees and costs. (Code Civ. Proc., § 425.16, subd.
(c).) Defendants shall recover their costs on appeal.
16. Heller, Catch-22 (1961).
40a
Appendix A
CERTIFIED FOR PUBLICATION
EGERTON, J.
We concur:
EDMON, P.J.
DHANIDINA, J.*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
*
41a
AppendixOF
B THE SUPERIOR
APPENDIX B — RULING
COURT OF THE STATE OF CALIFORNIA FOR
THE COUNTY OF LOS ANGELES, FILED
SEPTEMBER 29, 2017
SUPERIOR COURT OF THE STATE OF
CALIFORNIA FOR THE COUNTY
OF LOS ANGELES
CASE No. BC667011
olIvIa De havIllanD, DbE
v.
FX NETWORKS, et al.
RULING ON DEFENDANT’S MOTION
TO STRIKE (ANTI-SLAPP)
Defendant’s motion to strike is DENIED. Although
Defendant has shown that the show arises from protected
activity, Plaintiff has met her burden in showing a
likelihood of prevailing on the merits, as set forth below.
The court’s ruling on the evidentiary objections is set forth
in a separate document.
Section 425.16 posits a two-step process for determining
whether an action is a SLAPP. First, the court decides
whether the defendant has made a threshold showing
that the challenged cause of action is one arising from
protected activity. (§ 425.16, subd. (b)(l).) “A defendant
meets this burden by demonstrating that the act
underlying the plaintiff’s cause fits one of the categories
42a
Appendix B
spelled out in section 425.16, subdivision (e).” Braun v.
Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043;
Navellier v. Sletten (2002) 29 Cal. 4th 82, 88. If the first
prong is met, the burden shifts to the plaintiff to establish
a likelihood of prevailing on the complaint.
I.
FIRST PRONG – An Issue of Public Interest in a
Public Forum
The moving party asserts that the speech at issue is
protected under subdivisions (3) and (4) of §425.16(e). See
Moving Papers, page 7, lines 6-9. As such, the court must
first determine if the speech at issue was “made in a place
open to the public or a public forum” and involved an issue
of public interest.
Public Forum
A public forum is a place open to the use of the general
public “for purposes of assembly, communicating thoughts
between citizens, and discussing public questions.”
Krishna Society v. Lee (1992) 505 U.S. 672, 679, 112 S.Ct.
2701, 2706, 120 L.Ed.2d 541,550. The airing of a television
docudrama is “an exercise of free speech” (Tamkin v. CBS
Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143) that is
“undoubtedly a public form.” See Damon v. Ocean Hills
Journalism Club (2000) 85 Cal.App.4th 468, 476.
Public Interest
A public interest is “any issue in which the public is
interested.” Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.
43a
Appendix B
App.4th 1027, 1042. The public interest requirement is to be
construed broadly. Seelig v. Infinity Broadcasting Corp.
(2002) 97 Cal.App.4th 798, 808. The court finds that there
is a sufficient basis to find that a television show about
Bette Davis and Joan Crawford, including those who knew
and worked with them – including a “two-time Academy
Award winner” like Plaintiff (see operative Complaint,
¶ 9) – is a matter of public interest. Therefore, the court
finds that defendant has established the first prong of the
Anti-SLAPP statute.
II. SECOND PRONG – Likelihood of Prevailing
As the first prong his been met, the burden shifts to
Plaintiff to show a probability of prevailing on the claim.
Under CCP § 425.16(b)(2), the trial court in making these
determinations considers ‘the pleadings, and supporting
and opposing affidavits stating the facts upon which
the liability or defense is based.’ Equilon Enteprises
v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67. The
plaintiff must demonstrate that the complaint is both
legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited. The court
does not weigh the credibility or comparative probative
strength of competing evidence. Navellier v. Sletten (2003)
106 Cal.App.4th 763, 768. Furthermore, California’s antiSLAPP statute “poses no obstacle to suits that possess
minimal merit.” Navellier v. Sletten, 29 Cal. 4th 82, 93
(2002). See also Digerati Holdings, LLC v. Young Money
Entertainment, LLC (2011) 194 Cal.App.4th 873, 884.
44a
Appendix B
In this instance, the Court finds that Plaintiff has
successfully met her burden in showing that she has a
likelihood of prevailing on the merits, as set forth below
and at the hearing on this motion.
3RD CAUSE OF ACTION – INVASION OF PRIVACY/
FALSE LIGHT
The operative Complaint asserts that “FX DEFENDANTS
used recreations of OLIVIA DE HAVILLAND in the
same activities for which she is known in real life, at the
same time putting false words in her mouth, knowingly or
recklessly not reporting events truthfully and accurately.”
(¶ 17). Specifically, Plaintiff identifies 4 scenes that falsely
portray Plaintiff:
1.
In the opening scene, falsely indicating that
Plaintiff gave an interview at the 1978 Academy
Awards discussing the relationship between
Bette Davis and Joan Crawford. (¶¶ 17, 18, 23,
28, 29).
2.
In the fifth segment, falsely given the impression
that Plaintiff referred to her sister, Joan
Fontaine, as her “bitch sister.” (¶¶ 24, 28).
3.
Falsely indicating that she said that Frank
Sinatra must have drunk all the alcohol because
they couldn’t find any. (¶ 25).
4.
In the seventh segment, falsely indicating that
she turned down a role to play a villain in the
45a
Appendix B
movie “Hush ... Hush, Sweet Charlotte” by
stating that she doesn’t “play bitches” and that
the director should call her sister. (¶ 26).
“A “false light” cause of action is in substance equivalent
to a libel claim, and should meet the same requirements
of the libel claim, including proof of malice.” Aisenson v.
American Broadcasting Co. (1990) 220 Cal.App.3d 146,
161.
Defendants assert that Plaintiff cannot prevail on this
cause of action because (1) the television program does
not falsely portray Plaintiff, (2) it is not defamatory, and
(3) there is no showing of actual malice.
FALSE PORTRAYAL
First, Defendant argues that the television program
accurately portrays Plaintiff – in other words, the scenes
are factual. As noted in Masson v. New Yorker Magazine
(1991) 501 U.S. 496-516-517:
California law permits the defense of substantial
truth and would absolve a defendant even
if she cannot “justify every word of the
alleged defamatory matter; it is sufficient if
the substance of the charge be proved true,
irrespective of slight inaccuracy in the details.”
5 B. Witkin, Summary of California Law § 495
(9th ed. 1988) (citing cases).
46a
Appendix B
Regarding the interview scene at the 1978 Academy
Awards, Defendants argue that the scene is substantively
accurate, even if there are “slight” inaccuracies. As noted
in the declaration of Timothy Minear at ¶ 15:
Many of the de Havilland character’s scenes
take place during imagined interviews at the
1978 Academy Awards. Research indicates that
Ms. de Havilland attended the 1978 Academy
Awards. Although, to my knowledge, Ms. de
Havilland was not actually interviewed at the
1978 Academy Awards, her dialogue for the
imagined interviews was based on a number of
actual interviews that she had given over the
years. In some instances, as discussed below,
the de Havilland character’s lines were taken
directly from Ms. de Havilland’s interviews.
Plaintiff, by contrast, argues that the interview scene
contains significant, as opposed to slight, inaccuracies.
As the opposition notes:
Specifically, Defendants admit “Feud” places de
Havilland in a counterfeit interview, one which
never happened .... Defendants admit there
was no interview of de Havilland in 1978 at the
Academy Awards about the private relationship
of Davis and Crawford, and that they made this
up ... In that fake interview, de Havilland gossips
and makes negative comments about Davis and
Crawford’s personal life ... De Havilland never
said these things ... “Feud” has de Havilland call
47a
Appendix B
her sister, actor Fontaine, a “bitch” to others in
the profession ... She did not do this ... “Feud”
also has de Havilland snipping to Davis about
Sinatra’s drinking habits ... This is not true ...
[See Opposition, page 13, lines 5-17.]
These facts, which are supported by the declaration
of Plaintiff (see Supplemental Declaration of Plaintiff,
¶¶ 4-6), are sufficient to meet her burden of showing that
there was no interview at the 1978 Academy Awards and
that the sentiments expressed in this interview were not
factually accurate.
Second, regarding the scenes wherein she used the
term “bitch,” Defendant argues that there are multiple
examples of her using this type of language (Exhibits 2729, 43-52), that she actually told director Robert Aldrich
that “she doesn’t play bitches” (Exhibit 19), and that she
called her sister the “Dragon Lady” which, according to
Defendants, is a synonym for “bitch.” See Moving Papers,
page 9, line 1 through page 10, line 5. As further explained
in ¶ 18 of the declaration of Ryan Murphy, who was the
“co-creator, an executive producer, a writer, and a director
of FEUD” (Decl. of Murphy, ¶ 1):
Additionally, I had the de Havilland character
refer to her sister as a “bitch” because it was a
powerful and succinct way to convey the deep
enmity between the de Havilland and Fontaine.
I was familiar with the history of the sisters’
fraught relationship, including the famous
photograph from the 1947 Oscars that captured
48a
Appendix B
the moment where Ms. Fontaine unsuccessfully
attempted to congratulate Ms. de Havilland.
Just as a picture is worth a thousand words and
can shine light on the essence of a relationship,
so too I believed that having the de Havilland
character refer to her sister as a “bitch” would
capture decades of animosity in a single word.
As further noted in the declaration of Timothy Minear at
¶ 15e(i) and ¶ 19:
The de Havilland character’s line, which I
wrote, was a near-verbatim quote of what
Ms. de Havilland reportedly really said to
Aldrich: “Darling, you know how much I hate
to play bitches. They make me so unhappy.” See
Berkley Decl., Exhibit 19 at p. 403. Additionally,
as discussed above, Ms. de Havilland spoke
critically about her sister, Fontaine, calling
her “Dragon Lady,” and we had seen “blooper”
reels of Ms. de Havilland curing “Oh Christ
son of a bitch!” when she messed up a line. See
Berkley Decl., Exhibits 30-31,43-48.
Plaintiff, however, asserts that “Dragon Lady” is not a
synonym for “bitch” (see Opposition, page 13, footnote
15 and Supplemental Declaration of Cort Casady at ¶ 8)
and that while there are outtakes from 1944 showing that
Plaintiff used the term about her own mistakes, she notes
that these were private moments not directed at other
individuals. See Opposition, page 14-15, footnote 17. As
fi.1rther noted in the supplemental declaration of Plaintiff
at ¶ 6 and ¶ 8:
49a
Appendix B
I never had a conversation with director Robert
Aldrich about “Hush ... Hush, Sweet Charlotte,”
wherein I used the word “bitch,” or said “you
know how much I hate to play bitches; they
make me so unhappy.” ...
I am aware that Defendants filed certain
outtakes from 1944, where I and a number of
other actors at Warner Bros., such as Lauren
Bacall, Bette Davis, Ronald Reagan, and
Jimmy Stewart made mistakes and used slang
type expletives expressing frustration with
ourselves. These were unguarded, impulsive
moments, wherein I felt I was in a confidential
setting. They were not public. Looking back
at my younger self, I wish I had been more
guarded in my language, but these outtakes or
bloopers are just that, mistakes and errors, not
language that I did or would use in discussing
other friends or family in a normal, polite,
private or public forum.
For purposes of this motion, Plaintiff has sufficiently met
her burden in showing that the use of the term “bitch”
and “bitches” in the television show were not factually
accurate. Navellier v. Sletten, supra. While Plaintiff
admits that she used that term in 1944, the term was not
directed at another person or project whereas “Feud”
has Plaintiff using that term in regard to her sister or a
movie project.
50a
Appendix B
Finally, as to the Frank Sinatra scene, Defendant claims
that this is a true event. See Moving Papers, page 9,
lines 17-18. However, the actual line about Frank Sinatra
does not appear to have been a true event. As implicitly
admitted in the declaration of Timothy Minear at
¶ 15(d)(vii):
Backstage at the 1978 Academy Awards, the de
Havilland character gives the Davis character
a private pep talk in Frank Sinatra’s dressing
room, where Ms. de Havilland and Davis
reportedly spent most of the real Oscar night
in 1963. See Berkley Decl., Exhibit 21 at p.
348. The de Havilland character praises Davis,
tries to cheer her up, and reminds her how
much help Davis provided at the beginning of
her own career. The de Havilland character’s
remarks were inspired by Ms. de Havilland’s
own comments, such as her praise for Davis on
the Merv Griffin show in 1973. At the end of
their heart-to-heart, the Davis character asks,
“Where’s the booze?” and the de Havilland
character jokes, “I think Frank must’ve drunk
it all...”
As further noted in the Supplemental Declaration of
Plaintiff at ¶ 4: “I never commented to Bette Davis about
Mr. Frank Sinatra’s drinking habits ...” Accordingly, for
purposes of this motion, Plaintiff has sufficiently met
her burden of showing that the comments about Frank
Sinatra were false.
51a
Appendix B
DEFAMATORY
Alternatively, Defendants assert that even if some of the
statements and scenes are not accurate (see Reply, pages
6-9), the television program is not defamatory because (1)
there is nothing in the show that would expose Plaintiff to
scorn or ridicule, and (2) the show does not purport to be a
documentary. See Moving Papers, page 10, line 26 through
page 11, line 8. As Defendants noted in the declaration of
Timothy Minear at ¶ 18:
Because of our awareness of Ms. de Havilland’s
guarded attitude toward publicly discussing
Fontaine, as well as our Understanding of the
widely reported animus between the two sisters,
we drew a deliberate distinction between Feud’s
portrayal of the de Havilland character in
public – in the imagined 1978 interview- and
its portrayal of the de Havilland character
in private – in her candid conversations with
Davis (and even Aldridge). In public, the de
Havilland character refuses to speak ill of her
sister and denies that there is even a feud with
Fontaine. Furthermore, consistent with Ms.
de Havilland’s actual restrained approach,
the de Havilland character in Feud decries
gossip and counsel’s her friend Davis to say
“no comment” rather than speaking about
Crawford. By contrast, in private conversations
with her close friend, Davis, the de Havilland
character is freer with her remarks about
Fontaine and makes a few pointed comments
52a
Appendix B
about her sister. But this does not make the de
Havilland character a hypocrite – it makes her
human. And as discussed above, this depiction
is consistent with the actual record and Ms. de
Havilland’s own most recent comments [where
she purportedly called her sister “Dragon
Lady” in 2016].”
However, “In determining whether a publication has a
defamatory meaning, the courts apply a totality of the
circumstances test to review the meaning of the language
in context and whether it is susceptible of a meaning
alleged by the plaintiff.” Balzaga v. Fox News Network,
LLC (2009) 173 Cal.App.4th 1325, 1337. As Balzaga, supra,
further notes at page 1338:
“[A] defamatory meaning must be found, if at
all, in a reading of the publication as a whole.”
(Kaelin v. Globe Communications Corp. (9th
Cir. 1998) 162 F.3d 1036, 1040 (Kaelin).) “This
is a rule of reason. Defamation actions cannot
be based on snippets taken out of context.” ...
“In determining whether statements are of a
defamatory nature, and therefore actionable,
‘“a court is to place itself in the situation of the
hearer or reader, and determine the sense or
meaning of the language of the complaint for
libelous publication according to its natural and
popular construction.”’” (Morningstar, Inc. v.
Superior Court, supra, 23 Cal.App.4th at p. 688,
29 Cal.Rptr.2d 547.)
53a
Appendix B
In this instance, the four scenes at issue are (1) falsely
indicating that Plaintiff gave an interview at the 1978
Academy Awards discussing the relationship between
Bette Davis and Joan Crawford; (2) falsely given the
impression that Plaintiff referred to her sister, Joan
Fontaine, as her “bitch sister;” (3) falsely indicating that
she said that Frank Sinatra must have drunk all the
alcohol because she couldn’t find any; and (4) falsely stating
to director Robert Altman that she doesn’t “play bitches”
and that the director should call her sister.
For purposes of this motion, and in considering the show
as a whole, the Court finds that Plaintiff has sufficiently
met her burden of proof in that a viewer of the television
show, which is represented to be based on historical facts,
may think Plaintiff to be a gossip who uses vulgar terms
about other individuals, including her sister. Jackson v.
Paramount Pictures Corp. (1998) 68 Cal.App.4th 10, 26.
(“Moreover, when a party repeats a slanderous charge,
he is equally guilty of defamation, even though he states
the source of the charge and indicates that he is merely
repeating a rumor.”) For a celebrity, this could have a
significant economic impact for the reasons set forth in
the declaration of Cart Casady at ¶ 12:
In order for the property rights to have value to
Miss de Havilland, she must be able to control
their use and limit their use to productions
for which she has given consent and which are
accurate. “Feud’s” unauthorized and untrue
portrayal, left unchecked, has and will devalue
Miss de Havilland’s name and identity and her
54a
Appendix B
ability, and the ability of her heirs, to obtain
compensation for such use now and in the
future.
MALICE
Finally, Defendant’s assert that even if the depiction of
Plaintiff is false and defamatory, there is insufficient
evidence of actual malice.
As explained in Reader’s Digest Assn. v. Superior Court
(1984) 37 Cal. 3d 244, 256-257:
If the person defamed is a public figure, he
cannot recover unless he proves, by clear and
convincing evidence (see New York Times Co.
v. Sullivan, supra, 376 U.S. 254, 285-286, 84
S.Ct. 710, 728-729, 11 L.Ed.2d 686), that the
libelous statement was made with “‘actual
malice’ – that is, with knowledge that it was
false or with reckless disregard of whether
it was false or not.” (Pp. 279-280, 84 S.Ct. at
pp. 725-726.) That decision did not define the
phrase “reckless disregard,” and its use of the
term – ”actual malice” – which had a different
meaning in the common law of libel, engendered
some confusion.
Four years later, in St. Amant v. Thompson,
supra, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d
262, the high court sought to clarify the
constitutional standard. First, it explained,
55a
Appendix B
“reckless conduct is not measured by whether a
reasonably prudent man would have published,
or would have investigated before publishing.
There must be sufficient evidence to permit
the conclusion that the defendant in fact
entertained serious doubts as to the truth of
his publication. Publishing with such doubts
shows reckless disregard for truth or falsity
and demonstrates actual malice.” (P. 731, 88
S.Ct. at p. 1325.)
The quoted language establishes a subjective
test, under which the defendant’s actual belief
concerning the truthfulness of the publication
is the crucial issue. (See Alioto v. Cowles
Communications, Inc. (N.D.Cal. 1977) 430
F.Supp. 1363, 1365-1366.) This test directs
attention to the “defendant’s attitude toward
the truth or falsity of the material published
... [not] the defendant’s attitude toward the
plaintiff.” (Widener v. Pacific Gas & Electric
Co. (1977) 75 Ca1.App.3d 415, 434, 142 Cal.
Rptr. 304.)
Defendants asser t that because “Feud’s w r iters
investigated and consulted numerous resources to ensure a
factual basis for their dramatic narrative and to accurately
depict Plaintiff’s documented use of salty language, her
bitter rivalry with Fontaine, and her style and approach
in public interviews ... Plaintiff cannot possibly meet her
heavy burden of showing that Defendant’s entertained
“serious” doubts of the truth of the essence of the
56a
Appendix B
telescoped composite” of the de Havilland character.” See
Moving Papers, page 12, lines 6-11 (citing Davis v. CostaGavras (S.D.N.Y. 1987) 654 F.Supp. 653, 658).
As also noted in the declaration of Timothy Minear at ¶ 16:
... the de Havilland character was scrupulously
w r itt en t o be nua nced, a consu m mat e
professional, and consistent with the historical
record and Ms. de Hav illand’s real-life
statements; we certainly did not mean to
disparage Ms. de Havilland.
Although Defendant’s argue that they were trying to
portray Plaintiff in a nuanced way, Plaintiff has met her
burden for purposes of this motion. Reader’s Digest Assn.
v. Superior Court, supra (“This test directs attention to
the “defendant’s attitude toward the truth or falsity of
the material published ... [not] the defendant’s attitude
toward the plaintiff.”) Here, Plaintiff has submitted
sufficient evidence that Defendants presented scenes
‘’with knowledge that it was false or with reckless
disregard of whether it was false or not.” Reader’s Digest
Assn. v. Superior Court, supra. As Plaintiff notes in her
Supplemental Declaration of Plaintiff at ¶¶ 3-6:
I am aware that in “Feud” there is a character
designed to look like me, sound like me, and do
many of the things I did and do as a professional
actor ... I never gave an interview which I talked
about the personal relationship of Miss Bette
Davis and Miss Joan Crawford ...
57a
Appendix B
I never commented to Bette Davis about Mr.
Frank Sinatra’s drinking habits, and to have
done so would not have been my normal conduct,
custom or habit.
I never had a conversation with Bette Davis
where I referred to my sister, Joan Fontaine,
as a “bitch,” and I would not have done so.
I never had a conversation with Director Robert
Aldrich about “Hush ... Hush, Sweet Charlotte,”
wherein I used the word “bitch,” or said “you
know how much I hate to play bitches; they
make me so unhappy.” (I hope you will excuse
the present use of the word.)
While Defendants also argue that they relied on books
written about Plaintiff, the supplemental declaration
of Cort Casady points out that the comments in books
attributed to Plaintiff have not been properly sourced.
Jackson v. Paramount Pictures Corp. (1998) 68 Cal.
App.4 th 10, 26 (“Moreover, when a party repeats a
slanderous charge, he is equally guilty of defamation, even
though he states the source of the charge and indicates
that he is merely repeating a rumor.”) As Casady notes
at ¶ 6 and ¶ 7:
Defendants rely on Miss de Havilland’s
supposed use of the word “bitch” during
a private conversation she reportedly had
with director Robert Aldrich ... As a source
of this quote, Defendants rely on a book by
58a
Appendix B
Shaun Considine called “Bette & Joan: The
Divine Feude,” attached as Exhibit 19 to the
Declaration of James Berkley. This book
makes no reference or citation to support this
statement. ...
The Declaration of James Bekley cites another
book, “Round Up the Usual Suspects: The
Making of Casablanca – Bogart, Bergman, and
World War II” by Aljean Harmetz, attached as
Exhibit 52 to Mr. Berkley’s declaration. This
book discusses an alleged private conversation
between Samuel Goldw yn, Jr. and Miss
de Havilland in which Miss de Havilland
supposedly vented about director Michael
Curtiz who was mistreating actors, stating
“he was a son of a bitch when I was seventeen,
and he’s still a son of a bitch.” Again, this book
includes no reference or citation to support this
statement. Further, Defendants do not state
that they relied on this book while creating
“Feud,” rather it was obtained later for the
purposes of this Motion ...
Moreover, while Plaintiff may have used the word “bitch”
in 1944 in outtakes directed at her own error, it was not
directed at any person or project. See Supplemental
Declaration of Plaintiff at ¶ 6 and ¶ 8.
Finally, while the movie is deemed to be a docudrama
which, according to Defendants, is “a dramatized retelling
of history” (see Declaration of Timothy Minear at ¶ 10),
59a
Appendix B
the declaration of Mark Roesler, who is the Chairman and
CEO of Celebrity Valuations (¶¶ 6), notes at ¶ 20:
The authentic details are used to lead the
viewers into believing that what de Havilland
says and does is accurate and factual, rather
than made up and false, and that de Havilland
herself endorsed the “Feud” portrayal of her
private and public remarks about other actors
at the time “Feud” is set.
Here there is no attempt to show that the movie was
considered a “farce.” To the contrary, Ryan Murphy
notes at ¶ 15 of his declaration that “[t]he de Havilland
character was scrupulously written to be nuance and
consistent with the historical record.” Also, unlike the
character in American Hustle, there is no evidence that
Defendants sought to portray Plaintiff as unreliable,
slightly unhinged, or “a font of misinformation.”
In other words, because Defendants sought to portray
the show “consistent with the historical record,” the
statements made in the show may lead a reasonable viewer
to believe the statements were actually made by Plaintiff.
Accordingly, for purposes of this motion, the Court finds
that on the third cause of action, Plaintiff has sufficiently
met her burden by showing that although the Defendants
sought to be “consistent with the historical record,” they
attributed comments to her “with knowledge that it
was false or with reckless disregard of whether it was
false or not.” Digerati Holdings, LLC v. Young Money
Entertainment, LLC (2011) 194 Cal.App.4th 873, 884.
60a
Appendix B
1ST AND 2ND CAUSES OF ACTION – COMMON LAW
AND STATUTORY RIGHT OF PUBLICITY
As noted in Timed Out, LLC v. Youabian, Inc. (2014)
229 Cal.App.4th 1001, 1005-1006: “In this state the right
of publicity is both a statutory and a common law right.”
(Comedy III Productions, Inc. v. Gary Saderup, Inc.
(2001) 25 Cal.4th 387, 391 (Comedy III).) In 1971, California
enacted Civil Code section 3344, a commercial statute that
complements the common law tort of misappropriation of
likeness. (Lugosi v. Universal Pictures (1979) 25 Cal. 3d
813, 819 fn. 6; KNB, supra, 78 Cal.App.4th at pp. 366-367.)
Section 3344, subdivision (a) provides in relevant part:
“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.”
Nothing in section 3344 expressly prohibits assignment
of the rights and remedies established by the statute.
As Comedy III Productions, Inc. v. Gary Saderup,
Inc. (2001) 25 Cal.4th 387, 403, notes, “What the right of
publicity holder possesses is not a right of censorship,
but a right to prevent others from misappropriating
the economic value generated by the celebrity’s fame
through the merchandising of the “name, voice, signature,
photograph, or likeness” of the celebrity.” (§ 990.)
61a
Appendix B
Defendants contend that Plaintiff cannot prevail on her
causes of action for violation of Plaintiff’s Right of Publicity
because (1) the fictional depiction of Plaintiff in a television
series is constitutionally protected, (2) the show is a matter
of public interest, (3) the show is “transformative” and,
thus, “especially worthy” of protection, and (4) there is no
showing of falsity or actual malice.
CONSTITUTIONALLY PROTECTED
Defendants, relying on Guglielmi v. Spelling-Goldberg
(1979) 25 Cal. 3d 860, note that they did not use any
advertisements featuring the actual likeness of Plaintiff
and that “a cause of action for appropriation of another’s
“name and likeness may not be maintained” against
“expressive works, whether factual or fictional.”” Daly v.
Viacom, Inc. (N.D. Cal. 2002) 238 F.Supp.2d 1118, 1123
(citing Guglielmi, supra, at page. 871-872). As noted in
the declaration of Stefanie Gibbons, who is the “President
of Marketing, Digital Marketing, and On-Air Promotions
for FX Networks, LLC” (¶ 1), at ¶ 6:
In advertising and promoting Feud, FX did not
use images of the actress Olivia de Havilland.
On certain occasions, FX did use images of
Catherine Zeta-Jones, who portrayed the
de Havilland character. Consistent with this
approach, FX did not use Ms. de Havilland’s
name in isolation, but rather only to identify
the character being played by Ms. Zeta-Jones.
Moreover, FX did not prominently feature Ms.
Zeta-Jones in our marketing and promoting
for Feud.
62a
Appendix B
Plaintiff, by contrast, asserts that Defendants received a
benefit from using her likeness to promote the television
broadcast such that it appeared Plaintiff was endorsing
the television show. In such instances, the right of publicity
would trump the First Amendment. As noted in Comedy
III Productions, Inc., supra, at page 396;
The right of publicity is often invoked in
the context of commercial speech when the
appropriation of a celebrity likeness creates
a false and misleading impression that the
celebrity is endorsing a product. (See Waits v.
Frito-Lay, Inc. (9th Cir. 1992) 978 F.2d 1093;
Midler v. Ford Motor Co. (9th Cir. 1988) 849
F.2d 460.) Because the First Amendment does
not protect false and misleading commercial
speech (Central Hudson Gas & Elec. Corp.
v. Public Serv. Com’n (1980) 447 U.S. 557,
563-564, 100 S.Ct. 2343,65 L.Ed.2d 341), and
because even nonmisleading commercial speech
is generally subject to somewhat lesser First
Amendment protection (Central Hudson, at p.
566, 100 S.Ct. 2343), the right of publicity may
often trump the right of advertisers to make
use of celebrity figures.
In this case, Plaintiff asserts that Defendants admit that
the likeness of Plaintiff “played a key role.” See Opposition,
page 3, lines 10-11. As the opposition asserts:
The use of Plaintiff’s Identity was intended to
increase the appeal and success of “Feud,” as
63a
Appendix B
well as to create the impression that Plaintiff,
who the audience would trust, endorsed “Feud,”
Defendants, and their entertainment services.”
[See Opposition, page 3, lines 18-21].
See Zacchini v. Scripps-Howard Broadcasting (1977) 433
U.S 562, 576.
As noted in the expert declaration of Cart Casady, who
has worked in the television industry as a writer, producer
and creator (¶¶ 3-4), at ¶ 11 and ¶ 12:
The standard practice in the film and television
industry generally ... is that whenever a script
or production calls for the inclusion of the name,
identity, character, performance or image
of a celebrity, consent from the celebrity or
their legal representative must be obtained.
If the use is significant, as in a supporting
character role in a film, compensation needs to
be paid for the value of that use. For any use
without compensation, a release and waiver
of compensation must be obtained ... To use
the name and identify of a celebrity without
permission is conduct below industry standard
... [¶] The writers of “Feud” clearly and
intentionally capitalized on the actual character
and fame of Olivia de Havilland by depicting
her doing things she did ... the construction of
“Feud’s” storyline is designed to appear to the
viewer as if the still-living Miss de Havilland
endorsed the product and its contents, which
64a
Appendix B
is not true. It is not industry practice to use a
celebrity’s name and identity in a commercial
production w ithout permission, and it is
certainly beneath industry standards – in fact,
it is production malpractice – to attribute false
statements and inaccurate endorsements to a
person portrayed in a production without their
permission ...
The use of Miss de Havilland’s name and
identity without her permission and without
compensation if allowed to occur without
compensation, depreciates the property value of
her name and identity, which is considerable ...
Although the Defendants’ reply cites Polydoros v.
Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th
318, 326, for the proposition that Defendants were not
required to compensate Plaintiff, the Polydoros case
was discussing negligence. Moreover, Polydoros did not
involve a celebrity, and the film at issue in Polydoros, was
“a fanciful work of fiction and imagination.” Polydoros,
supra, at page 324. Here, by contrast, the defendants
attempted to make the program “consistent with the
historical record.” (See declaration of Ryan Murphy at
¶ 15).
As noted in Comedy III Productions, Inc., supra, at page
399:
But having recognized the high degree of First
Amendment protection for noncommercial
65a
Appendix B
speech about celebrities, we need not conclude
that all expression that trenches on the right
of publicity receives such protection. The right
of publicity, like copyright, protects a form of
intellectual property that society deems to have
some social utility. “Often considerable money,
time and energy are needed to develop one’s
prominence in a particular field. Years of labor
may be required before one’s skill, reputation,
notoriety or values are sufficiently developed
to permit an economic return through some
medium of commercial promotion. [Citations.]
For some, the investment may eventually create
considerable commercial value in one’s identity.”
(citing Lugosi, supra, 25 Cal.3d at pp. 834-835
(dis. opn. of Bird, C. J.).)
In other words, “depictions of celebrities amounting
to little more than the appropriation of the celebrity’s
economic value are not protected expression under the
First Amendment.” Comedy III Productions, Inc., supra,
at page 400.
Here, Plaintiff argues that the depiction of her in the
television program allegedly “depreciate[d] the property
value of her name and identity ...” (see Declaration of
Cort Casady at ¶ 11) by painting her as a gossip who uses
vulgar language. Such characterization, according to
Casady, would depreciate the economic value of Plaintiff’s
name and likeness. See Declaration of Casady at ¶ 12.
Because of this, it is standard in the industry, according
to Plaintiff, to negotiate compensation prior to the use of
66a
Appendix B
a person’s likeness. As noted in the expert declaration of
David Ladd at ¶ 15:
If the film suggests that the well-known person
endorses or is part of the production, then
of course this must be accurate and consent
obtained. If the use is significant, as in a
supporting character role, then if consent is
obtained compensation is negotiable. In my
personal experience, this issue was delegated
to and handled by people who worked either
for or with me, either in the legal or business
affairs departments of the studios or outside
counsel. Before nay project begins production,
the errors and omission insurance policies
were strict about the studios confirming
consent from well-known living person, or
well-documented authentications of previously
disclosed statements or conduct by the wellknown living person.
Here, because no compensation was given despite using
her name and likeness, plaintiff has adequately met her
burden. Zacchini v. Scripps-Howard Broadcasting (1977)
433 U.S 562, 576, (“No social purpose is served by having
the defendant get free some aspect of the plaintiff that
would have market value and for which he would normally
pay.”’) Although the reply argues that compensation is not
required when a person’s name and likeness is used (see
reply, page 2, line 10 through page 3, line 7, and declaration
of Casey Lalonde, ¶ 8), the Polydoros case did not make
such a finding but, rather, simply held that “[i]t simply
67a
Appendix B
was not necessary to do so in this case.” Polydoros, supra.
Moreover, Plaintiff has submitted expert declaration
indicating that this is standard in the industry and, if
credited, is sufficient to meet her burden. Navellier v.
Sletten (2003) 106 Cal.App.4th 763, 768.
TRANSFORMATIVE
Defendants assert that the program was transformative
because “Feud is a docudrama, and therefore scenes are
dramatized – i.e. transformed.” See Moving Papers, page
14, lines 15-16.
The transformative issue is explained in more detail in
Comedy III Productions, Inc. v. Gary Saderup, Inc.,
(2001) 25 Cal.4th 387, notes at page 405:
On the other hand, when a work contains
significant transformative elements, it is not
only especially worthy of First Amendment
protection, but it is also less likely to interfere
with the economic interest protected by the
right of publicity. As has been observed,
works of parody or other distortions of the
celebrity figure are not, from the celebrity fan’s
viewpoint, good substitutes for conventional
depictions of the celebrity and therefore do
not generally threaten markets for celebrity
memorabilia that the right of publicity is
designed to protect. (See Cardtoons v. Major
League Baseball Players (10 th Cir. 1996) 95
F.3d 959, 974 (Cardtoons).) Accordingly, First
68a
Appendix B
Amendment protection of such works outweighs
whatever interest the state may have in
enforcing the right of publicity. The right-ofpublicity holder continues to enforce the right
to monopolize the production of conventional,
more or less fungible, images of the celebrity.
Specifically, Defendants contend that “The de Havilland
character was written from the perspective of writers who
viewed past events through the lens of present day cultural
issues .... Zeta-Jones used her unique talents to portray
Plaintiff forty years ago in an interpretive performance
that she artistically rendered under the direction of a film
director and further transformed via artistic viewpoint,
music, lighting, cinematography and editing. [See Reply,
page 5, lines 8-15.]
By contrast, Plaintiff asserts that the docudrama was
not transformative for the reasons noted in Comedy III
at page 405:
Turning to Saderup’s work, we can discern
no significant transformative or creative
contribution. His undeniable skill is manifestly
subordinated to the overall goal of creating
literal, conventional depictions of The Three
Stooges so as to exploit their fame. Indeed, were
we to decide that Saderup’s depictions 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.
69a
Appendix B
Moreover, the marketability and economic value
of Saderup’s work derives primarily from the
fame of the celebrities depicted. While that
fact alone does not necessarily mean the work
receives no First Amendment protection,
we can perceive no transformative elements
in Saderup’s works that would require such
protection.
Similarly, here, because the Defendants admit that they
wanted to make the appearance of Plaintiff as real as
possible (see Ryan Murphy Decl. at ¶¶ 14-15), there is
nothing transformative about the docudrama. Moreover,
even if Defendants imagined conversations for the
sake of being creative, such does not make the show
transformative. Comedy III Productions, Inc., supra,
25 Cal.App.4th 387, 405 (“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.”) See also No Doubt v. Activision
Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1034.
Additionally, Defendant argues that because “the economic
value of Feud does not primarily derive from Plaintiff’s
fame [but] from the acclaimed writing and directing, the
fame and performances of the series’ Emmy-nominated
stars ... and the work’s subject matter” (see Moving
Papers, page 14, lines 24-27), there is no violation of the
right of publicity.
70a
Appendix B
However, Plaintiff has met her burden on this motion
by showing that the use of her likeness in the television
program resulted in economic benefit to the Defendants.
As noted in the expert declaration of Mark Roesler at 125:
In consideration of the foregoing, it is my
opinion that a [fair market value] of the FX
Defendant’s use of de Havilland’s [right of
publicity] Related Rights, assuming such use
had been properly negotiated and compensated,
in a television production of the instant type and
caliber would be between $1.38 million to $2.1
million, conservatively. This results in losses to
de Havilland per episode and a financial benefit
to FX Defendants from the unauthorized and
false use of her name, identity, character and
image of approximately $172,500-262,500 per
episode.
FALSITY OR ACTUAL MALICE
Finally, Defendant argues that “a public figure like
Plaintiff may not recover in tort where the depiction is
substantially true or where the creator did not act with
actual malice.” See Moving Papers, page 15, lines 8-10
(citing Hoffman v. Capital Cities/ABC, Inc. (9th Cir. 2001)
255 F.3d 1180, 1186-1188).
In response, Plaintiff argues that statements are false
and malicious.
First, as Plaintiff notes in her Supplemental Declaration
of Plaintiff at ¶ 3-6:
71a
Appendix B
I am aware that in “Feud” there is a character
designed to look like me, sound like me, and do
many of the things I did and do as a professional
actor ... I never gave an interview which I talked
about the personal relationship of Miss Bette
Davis and Miss Joan Crawford...
I never commented to Bette Davis about Mr.
Frank Sinatra’s drinking habits, and to have
done so would not have been my normal conduct,
custom or habit.
I never had a conversation with Bette Davis
where I referred to my sister, Joan Fontaine,
as a “bitch,” and I would not have done so.
I never had a conversation with Director Robert
Aldrich about “Hush ... Hush, Sweet Charlotte,”
wherein I used the word “bitch,” or said “you
know how much I hate to play bitches; they
make me so unhappy.” (I hope you will excuse
the present use of the word.)
Second, Plaintiff argues that her depiction was done
maliciously because Defendants never sought her consent
or verified any of the statements made by her in the movie.
See Opposition, page 11, lines 1-3. By contrast, the Plaintiff
asserts:
... Defendants did ask one living celebrity, Don
Bachardy, who was used in a minor way, for his
consent. Decl. of Don Bachardy ¶ 5. Defendants
72a
Appendix B
also requested the consent of Joan Crawford’s
heirs. Smith Decl. Ex. 7. Defendants admit
there was no interview of de Havilland at
the 1978 Academy Awards about the private
relationship of Davis and Crawford, and that
they made this up ... Further, they do not deny
that Plaintiff did not comment on the drinking
habits of Sinatra, that they did not contact
Plaintiff, and that she did not endorse “Feud.”
... Defendants clearly knowingly and recklessly
disregarded the falsity of their depiction of
Plaintiff, including a fake interview and false
endorsement. [See Opposition, page 11, lines
4-13.]
As noted in Reader’s Digest Assn. v. Superior Court,
supra:
If the person defamed is a public figure, he
cannot recover unless he proves, by clear and
convincing evidence (see New York Times Co.
v. Sullivan, supra, 376 U.S. 254, 285-286, 84
S.Ct. 710, 728-729, 11 L.Ed.2d 686), that the
libelous statement was made with” ‘actual
malice’ – that is, with knowledge that it was
false or with reckless disregard of whether it
was false or not.”
For purposes of this motion, the Court finds that Plaintiff
has sufficiently met her burden of proof in showing that
Defendants acted with knowledge that their portrayal
of Plaintiff “was false or with reckless disregard of
73a
Appendix B
whether it was false or not” which, consequently, could
have an economic impact on Plaintiff. See declaration of
Cart Casady at ¶12 (““Feud’s” unauthorized and untrue
portrayal, left unchecked, has and will devalue Miss de
Havilland’s name and identity and her ability, and the
ability of her heirs, to obtain compensation for such use
now and in the future.”)
4TH CAUSE OF ACTION – UNJUST ENRICHMENT
“The elements of an unjust enrichment claim are the
“receipt of a benefit and [the] unjust retention of the
benefit at the expense of another.”” Peterson v. Cellico
Partnership (2008) 164 Cal.App.4th 1583, 1593.
Defendants assert that Plaintiff cannot prevail on this
cause of action because (1) it is merely derivative of the
prior allegations, and (2) unjust enrichment is not a cause
of action (Melchior v. New Lind Prod., Inc. (2003) 106
Cal.App.4th 779, 793). The Court finds these arguments
without merit in that the prior allegations have sufficiently
been pled. While unjust enrichment is not a cause of
action, Plaintiff may be able to pursue a theory of unjust
enrichment which, under applicable law, “is synonymous
with restitution.” Melchior, supra (“The phrase ‘Unjust
Enrichment’ does not describe a theory of recovery, but
an effect: the result of a failure to make restitution under
circumstances where it is equitable to do so.” [Citation
omitted]. Unjust enrichment is “‘a general principle,
underlying various legal doctrines and remedies,’” rather
than a remedy itself. [Citation omitted]. It is synonymous
with restitution. (Id. at 793, citing Dinosaur Development,
Inc. v. White (1989) 216 Cal.App.3d 1310, 1314-1315.)
74a
Appendix B
CONCLUSION
For the reasons set forth above and in the court reporter’s
notes, the court denies Defendant’s Motion to Strike
(Anti-SLAPP).
September 29, 2017
/s/
Holly E. Kendig, Judge
Los Angeles Superior Court
75a
AppendixOF
A PETITION FOR
APPENDIX C — DENIAL
REVIEW OF THE SUPREME COURT OF
CALIFORNIA, FILED JULY 11, 2018
Court of Appeal, Second Appellate District,
Division Three - No. B285629
S248614
IN THE SUPREME COURT OF CALIFORNIA
En Banc
OLIVIA DE HAVILLAND,
Plaintiff and Respondent,
v.
FX NETWORKS, LLC et al.,
Defendants and Appellants.
The petition for review is denied.
Cuellar, J., is of the opinion
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