Fictionalized Docudrama Protected by First Amendment in Latest Win for Media Companies
In a striking victory for media companies and the First Amendment, a California appeals court recently threw out two-time Academy Award winner Olivia de Havilland’s lawsuit against FX, which alleged that the docudrama Feud harmed her reputation and profited off her name without compensating her. Feud depicts a fictionalized account of the rivalry between Joan Crawford and Bette Davis on the set of the 1962 movie “Whatever Happened to Baby Jane?” As docudramas have surged in popularity, this ruling clarifies what a subject’s legal options may be (at least under California law) when they are displeased with their depiction in the program. Such challenges typically involve the right of publicity or privacy, false light, intentional infliction of emotional distress, and defamation.
De Havilland, whose role amounted to fewer than 17 minutes of screen time across all eight episodes of the series, argued that California right of publicity laws prohibited FX from portraying her unless she was paid and gave her permission for the portrayal because she is a celebrity who is able to profit from her appearances. Her complaint included a false light invasion of privacy claim, alleging that the docudrama harmed her reputation because it showed her engaging in gossip about other Hollywood celebrities and using impolite language to describe fellow actors. FX asked the court to strike the complaint under California’s anti-SLAPP statute, a law that provides for a special motion to strike a complaint when the lawsuit intends to suppress protected speech. Several companies and organizations, such as the Motion Picture Association of America and Netflix, filed amici briefs in support of FX, arguing that the free-speech implications of the lawsuit would have a chilling effect on creativity even beyond Hollywood.
In a unanimous opinion, the three-judge panel of the California appeals court found that the First Amendment protected the creative liberties taken with de Havilland’s character. The panel emphasized that “[b]ooks, 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.”
As to the false light claim, the panel found that a reasonable viewer would understand that Feud, a docudrama, is not entirely factual. The Court noted that “[v]iewers are generally familiar with dramatized, fact-based movies and miniseries in which scenes, conversations, and even characters are fictionalized and imagined.” Further, even if a viewer did not realize the docudrama was dramatized, the depiction of de Havilland would not be highly offensive to a reasonable person. Finally, even if the depiction was considered highly offensive to a reasonable person, de Havilland’s claim would still fail since she could not prove that FX acted with actual malice (which is required when the plaintiff is a public figure).
A Recent Trend in Similar Suits
In recent years, there has been an uptick in lawsuits such as this one. For example, in a suit against the screenwriter, director, and producer of the award-winning film The Hurt Locker, Army sergeant Jeffrey Sarver contended that the movie’s main character was based on his life and experiences, and that this portrayal of him was false in a way that injured his reputation. The district court granted the filmmakers’ anti-SLAPP motion to dismiss the suit and the Ninth Circuit affirmed, holding that The Hurt Locker 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.”
Other cases are still pending, including a lawsuit against John Oliver and HBO by coal company CEO Robert Murray regarding a segment on Oliver’s show Last Week Tonight, in which he referred to Murray as the “geriatric Dr. Evil” and alleged that a mining accident that killed nine people was partially the result of improper mining practices implemented by Murray’s company. However, the trend appears to be towards recognition of the importance of First Amendment protections in the media and entertainment industry.
Arent Fox’s Media & Entertainment practice will continue to monitor developments in this area. If you have any questions, please contact Anthony Lupo, Matthew Mills, Amy (Salomon) McFarland, Casey Perrino, or the Arent Fox professional who usually handles your matters.