On March 26, 2018, the California Court of Appeal filed its opinion in De Havilland v. FX Networks, LLC concerning FX’s docudrama Feud: Bette and Joan.  The De Havilland opinion is yet another good one for filmmakers and television producers.  The California Court of Appeal reiterated that the First Amendment provides a powerful defense for entertainment works, just as the Ninth Circuit did in the right of publicity case involving The Hurt Locker.  See Storytellers and Artists Rejoice: The Hurt Locker Is Fully Protected By The First Amendment.

For those of you who have not had time to read the Court’s opinion, here is what we consider to be the 9 major takeaways:

  1. The Court confirmed that a person does not own the facts that make up his or her own story or a portion thereof.
  2. Docudramas, which are a mixture of fact and fiction, are protected by the First Amendment. As the Court noted, the First Amendment “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.”  Order at 19.  And authors of docudramas have literary license under the First Amendment to alter true events and give dramatic interpretations thereof.
  3. So-called “life rights” agreements are not legally necessary. While there may be a practical reason for wanting to enter into a “life rights” agreement with a person, it is not legally required. The creators of film and television programs simply are not required to purchase a person’s rights to feature that person’s name or likeness.
  4. Advertising and promotions are protected too: The Court also confirmed that the creators of television programs may use a person’s name and identity in their promotions for the program without running afoul of right of publicity laws.
  5. The Court also followed the case of Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 860 (1979). In that case, Chief Justice Bird noted (in a widely-followed concurring opinion) that that creators should be allowed to express themselves using figures from history as a starting point for their stories.
  6. The Court made the transformative use test easier to follow (and satisfy), at least within the context of films, plays and television programs. See Opinion at 23-27.
  7. On a false light claim, the Court decides as a matter of law whether the program conveyed (a) statements of fact that are (b) defamatory or highly offensive to a reasonable person and (c) actually false or convey a false impression of the plaintiff. And the statement must be analyzed in its broad context to determine whether it implies an assertion of actual fact. Here, Ms. De Havilland’s claims failed, and the Court noted that viewers are familiar that docudramas (even those which are “based” on fact) contain fictionalized scenes, conversations and characters, as well as dramatic interpretations of events and dialogue.
  8. A public figure bringing a false light claim must prove actual malice by clear and convincing evidence. And “[p]ublishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice.” Opinion at 35.
  9. The Court re-confirmed that unjust enrichment simply is not a cause of action.