First Amendment and FX Triumph in “Feud” Right of Publicity Case

Publication Type: 
Other Writing
Publication Date: 
March 26, 2018

In a big win for free speech, the California Court of Appeal has rejected Olivia de Havilland’s right of publicity and false light claims against FX. The court’s ruling [PDF] explains that the First Amendment protects creative works about celebrities whether the work in question is fact, fiction, or a combination of both. While Hollywood will breathe a sigh of relief, the ruling should also protect other speech by ensuring that right of publicity claims are subject to meaningful First Amendment limits.

This case began when Olivia de Havilland sued FX for her portrayal in the TV miniseries “Feud,” alleging a violation of both her right of publicity and the tort of false light. FX filed an anti-SLAPP motion seeking to have the case thrown out and argued that its show was protected by the First Amendment. The Superior Court denied [PDF] the anti-SLAPP motion, ruling that de Havilland had a viable right of publicity claim because FX intended to portray her realistically. At the same time, the court found that that some aspects of the portrayal could support a false light claim. If the lower court’s interpretation of the law were correct, it would threaten a huge range of expression about real people, ranging from dramas, to documentaries, to fan websites.

EFF, together with the Wikimedia Foundation and the Organization for Transformative Works, filed an amicus brief [PDF] in support of FX’s appeal. Our brief focused on California’s “transformative use” test for whether a right of publicity claim is barred by the First Amendment. This test, from a California Supreme Court case called Comedy III Productions v. Gary Saderup, looks to whether the work somehow “transforms” the celebrity’s likeness. We explained that the First Amendment does not allow this test to be applied in a way that punishes realistic speech.

Read the full post at EFF