De Havilland v. FX Networks, LLC

Majority - Egerton, J.

No, the First Amendment protects the creators of a docudrama from claims of statutory right of publicity, common law misappropriation, and false light invasion of privacy, even when the docudrama portrays a real public figure without her consent and includes fictionalized elements, and uses her name and likeness in promotional materials. The court reversed the trial court's denial of FX's anti-SLAPP motion, emphasizing that the First Amendment safeguards expressive works—whether fictional, factual, or a combination—and that commercial gain does not diminish this protection. Individuals, even world-renowned film stars, do not 'own history' or have the legal right to control or veto their portrayal in creative works. Regarding the right of publicity claims, the court questioned whether a docudrama qualifies as 'products, merchandise, or goods' under Civil Code section 3344 but ultimately found it unnecessary to decide this, ruling that 'Feud' is constitutionally protected speech. Citing Guglielmi v. Spelling-Goldberg Productions and Sarver v. Chartier, the court affirmed that films and television shows are fully protected by the First Amendment. The court reasoned that the de Havilland character’s inclusion in 'Feud' does not imply an 'endorsement' of the work, and promotional uses are protected if they merely advertise the constitutionally protected publication, as established in Montana v. San Jose Mercury News, Inc. Even applying the 'transformative use' test from Comedy III Productions, Inc. v. Gary Saderup, Inc. (which is primarily intended for commercial merchandise), the court found 'Feud's' portrayal of de Havilland transformative. The de Havilland role, comprising only 4.2 percent of the miniseries, served as 'raw material' for an original work exploring broader themes beyond merely depicting de Havilland. The work's marketability and economic value derive principally from the creativity, skill, and reputation of its acclaimed creators and actors, not primarily from de Havilland's fame. For the false light claim, the court found that the alleged defamatory depictions (a fictitious interview, 'bitch sister' remarks, and a joke about Frank Sinatra's drinking) were neither reasonably susceptible to a defamatory meaning nor highly offensive to a reasonable person within the context of a docudrama, where viewers anticipate dramatized and imagined elements (Masson v. New Yorker Magazine, Inc.). The use of 'bitch' instead of de Havilland's own term 'dragon lady' for her sister was deemed 'substantially truthful' as it conveyed the same 'gist' of animosity. As a public figure, de Havilland also failed to provide clear and convincing evidence that FX acted with actual malice, which would require intent to convey a defamatory impression or reckless disregard for the truth. The court stated that fiction is by definition untrue, and publishing fictitious work about a real person does not automatically equate to actual malice. Finally, de Havilland's unjust enrichment claim failed because it is not a standalone cause of action and relied entirely on the other unsubstantiated claims. Presiding Justice Edmon and Justice Dhanidina concurred with the majority opinion.