Editorial: Olivia de Havilland’s legal loss means historical fiction gets to survive

Many people might be flattered to be portrayed by Catherine Zeta-Jones in a TV miniseries. Oscar-winning actress Olivia de Havilland, however, was not.

Zeta-Jones played De Havilland last year in “Feud: Bette and Joan,” the FX channel miniseries about the rivalry between Joan Crawford and Bette Davis. Not only was her name and likeness used without her consent, De Havilland asserted, but the series damaged her reputation by portraying her as a gossip who called her sister a “bitch” — something De Havilland insists she never did.

So she sued, claiming the series violated what’s known as her right of publicity — the control that California state law gives people over the use of their name, image and voice — and presented her in a false light. Last September a California Superior Court judge denied FX’s motion to dismiss De Havilland’s claims, in part (counter-intuitively) because “Feud” had sought to portray her accurately.

Think about the implications of that for a moment. Allowing someone portrayed realistically in a docudrama to sue just because he or she was included without consent would effectively give historical figures (and their heirs) veto power over movies, TV shows, books and other creative works that use their names or likenesses in the interest of verisimilitude. In other words, bye-bye, historical fiction.

Happily, the 2nd District Court of Appeal in Los Angeles ruled Monday that such works are protected by the 1^st Amendment. And really, the law was already fairly clear on that point. The higher court’s ruling simply stopped an overly expansive reading of the right of publicity from becoming a precedent.

State courts have held multiple times that there is no requirement that creators get people’s permission before incorporating their names, likenesses or narratives into creative works. As the court of appeal put it, “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 or ‘story’ the producers would not otherwise have, or a desire to avoid litigation for a reasonable fee. But the 1st Amendment simply does not require such acquisition agreements.”

Nevertheless, state law conveys a right of publicity that gives people control of how their identities are exploited for commercial purposes. So there’s a tension between free-speech and publicity rights that the courts have repeatedly sought to resolve. In a 2001 case involving T-shirts bearing the faces of the Three Stooges, the California Supreme Court created a test to determine which rights prevailed: If the work in question “adds significant creative elements” that transform it “into something more than a mere celebrity likeness or imitation,” then free-speech rights win. (The T-shirts flunked.)

In the “Feud” case, Superior Court Judge Holly E. Kendig in Los Angeles held, in effect, that the efforts by writer Ryan Murphy to be authentic actually made the production more vulnerable to a lawsuit by De Havilland. In Kendig’s view, the more realistic a work, the less transformative it is. At the same time, the judge allowed De Havilland to seek damages for the inaccuracies she found in the portrayal.

As the appellate panel noted, that’s a Catch-22. It’s also a pinched reading of what it means to use a person’s likeness in a transformative way. With Zeta-Jones on screen for barely 4% of the docudrama, the appellate panel held, De Havilland’s likeness is just one of the ‘raw materials’ used to produce “Feud.” And the series’ commercial value didn’t rely on De Havilland’s fame but on “the creativity, skill and reputation” of the cast and crew.

That’s a far more reasonable way to balance the competing 1st Amendment and publicity rights. Similarly, the panel’s ruling against De Havilland’s claim that she was portrayed in a false light recognized that reasonable viewers can tell the difference between dramatizations and presentations of fact.

As the panel put it, “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.”

The show can now go on.

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