De Havilland's Lawsuit on Film Fictions: She Doesn't Own History
by John Aquino on 04/29/18The legendary film actress Olivia De Havilland sued filmmakers for their depiction of her in the 2017 tv miniseries Feud. De Havilland had two advantages that most people who sue in these situations don't have. She was the one portrayed and, at the age of 101, she is still alive.
Many suits against filmmakers are by the children or spouses of the deceased people portrayed and they face immediate problems in succeeding in their litigation. For libel, only the person portrayed can sue because it is his or her reputation that has allegedly been injured (another way of saying this is, the dead can't sue for libel). For invasion of privacy or violation of the right of publicity, there is the question of whether those rights are inheritable. But De Havilland has lived long enough that she doesn't have these problems. The problem she had is that, according to the decision of California Court of Appeals in De Havilland v. FX Networks LLC, she didn't have a case.
The lower court had declined to dismiss the action, showing great deference to De Havilland and indicating that she could conceivably succeed on the merits of her complaint that FX Networks had violated her statutory right of publicity, misappropriated her image, and that the miniseries constituted false light invasion of privacy. (She didn't sue for libel, which is a false statement fixed in a tangible medium that is defamatory, is clearly about the plaintiff, and that causes damages.) De Havilland based her claims on an interview in the film she is shown as giving at the 1978 Academy Awards ceremony that the filmmakers admit didn't actually happen but that they used to frame their story and on two comments in which she was shown calling her sister Joan Fontaine a "bitch." She also stressed that the filmmakers hadn't asked her permission or paid for the use of her name or likeness.
A difficulty for De Havilland was that the miniseries wasn't about her. She was a minor character in the series. Another was that while she hadn't called her sister a "bitch," she had publicly called her a "Dragon Lady." (While acknowledging tension with her sister, De Havilland's concern was evidently that she was shown as using "vulgar" language.) A third was that she is a public figure, and many of the events shown in the miniseries had actually happened.
The appeals court made its position clear early on in its opinion: "Whether a person portrayed in these expressive works is a renowned film star--"a living legend"--or someone no one knows, he or she does not own history. Nor does she have the legal right to control, dictate, approve, disapprove or veto the creator's portrayal of actual people."
Among other points the court made were
- the U.S. Court of Appeals for the Ninth Circuit held in Sarver v. Chartier (9th Cir. 2016), which concerned the movie The Hurt Locker, that that film "was not speech proposing a commercial transaction" so as to constitute a violation of the right of publicity statute;
- the California Supreme Court in Guglielmi v. Spelling-Goldberg (1979), which concerned a tv-movie about the silent film start Rudolph Valentino, ruled that movies, whether fictitious, fact-based, or a blend of fact and fiction, are protected by the First Amendment;
- while some filmmakers enter into agreements with those portrayed in their films or their families, such agreements are not required by the First Amendment;
- the filmmakers use of De Havilland's character was transformative and just one, small component of the creative work; and
- a claim of false light invasion of privacy requires a showing that the portrayal is defamatory (causes damage to one's reputation) or highly offensive to a reasonable person, and De Havilland didn't do that.
The court's opinion also highlighted a problem a public figure has in suing a filmmaker for an allegedly false portrayal. If an expressive work is a work of fiction or a blend of fact and fiction, fiction by its very nature is false and assumed to be false and the plaintiff must prove that these "false" statements are defamatory or highly offensive to a reasonable person. This problem with proving the statements in question were defamatory is probably why De Havilland didn't sue for libel. And the court concluded that a reasonable person would not be offended by the miniseries' portrayal of her. Instead, the court wrote Catherine Zita Jones playing De Havilland acted as Dante's Beatrice from the Divine Comedy guiding the viewer through the film--there are few more non-derogatory, non-offensive images than that.
De Havilland's complaint drew a great deal of media coverage, as did the lower court's refusal to dismiss. The appeals court decision, which came at the end of March along with a flurry of other decisions, not as much. As the court suggested, De Havilland's fame brought her attention, but the ultimate picture it gives is that of a legendary film saw used to controlling her image who does not employ vulgar language. The court cited precedent to illustrate that those suing filmmakers for film depictions must show injury because being personally offended by the portrayal isn't enough.
Copyright 2018 by John T. Aquino This article is written for educational purposes and doesn't constitute a legal opinion
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