The first season of FX’s drama Feud told the story of the rivalry between Bette Davis and Joan Crawford. Set in Hollywood during the early sixties, the drama portrays numerous real-life figures from the era. Catherine Zeta-Jones appeared as Olivia de Havilland. Unfortunately, de Havilland did not enjoy the show. She sued FX asserting a number of torts including defamation, false light, and the right of publicity.

The right of publicity is a cause of action for commercial use of a person’s identity. It makes good sense when applied to prevent companies from, say, falsely claiming that a celebrity endorsed their product. But when it is asserted against creative expression, such as a TV show, it can burden First Amendment rights. Celebrities have brought right of publicity cases against a wide range of creative work ranging from moviesrap lyrics, and magazine features, to computer games

EFF has been very critical of recent right of publicity jurisprudence. Beginning with a California Supreme Court decision called Comedy III Productions v. Gary Saderup, many courts have tied First Amendment protection in right of publicity cases to whether the work somehow “transforms” the identity or likeness of the celebrity. But this rule (called the transformative use test) is a bad fit. The test is borrowed from copyright’s fair use standard. But, unlike copyright cases, right of publicity cases do not involve comparing two creative works. Instead, the accused work is compared against the actual celebrity: i.e. real life. Plenty of valuable speech, such as biographies or documentaries, involves depicting real people as accurately as possible. Why should these works be unprotected by the First Amendment?

The transformative use test has never made any sense in the right of publicity context. Fortunately for the TV and movie industry, courts have usually found the depiction of famous people in biopics like Feud to be protected. In our view, these decisions are correct in their result but only because they apply the transformative use test unfaithfully. Courts tend to apply that test more strictly when considering disfavored media such as computer games and comic books. But we have warned that the transformative use test threatens all creative expression about real people, including in film and TV.

Now we know we were right to worry. In de Havilland’s suit, FX filed an anti-SLAPP motion seeking to have the Gone with the Wind actress’s case thrown out. The cable network argued that its show was protected by the First Amendment. Evaluating the right of publicity claim, Judge Kendig of LA Superior Court wrote [PDF] that since the defendants “admit that they wanted to make the appearance of [de Havilland] as real as possible, there is nothing transformative about the docudrama.” Thus, she concluded that FX would likely lose under the transformative use test. With this ruling, we have reached the bottom of the slippery slope: accurate speech about real people is not protected by the First Amendment. 

Paradoxically, the court also held that de Havilland had a substantial likelihood of success on her defamation and false light claims. In our view, this part of the decision also failed to apply necessary First Amendment protections. Generally, dramatic recreations of real events are given strong free speech protection and the First Amendment requires that the plaintiff show that the speaker acted with “actual malice.” As a court faced with similar claims reasoned: “minor fictionalization cannot be considered evidence or support for the requirement of actual malice.” In de Havilland’s case, the ruling effectively punishes FX both for portraying the actress too accurately and not accurately enough.

If upheld, the Superior Court’s decision could make it much harder to make creative works based on real people. We hope the ruling gets reversed on appeal. Ultimately, the Supreme Court may need to step in and clean up the mess that state and lower federal courts have made of right of publicity law. The Supreme Court has not heard a right of publicity case for more than 40 years and guidance in this area is long overdue.