Last week, the IPAT Clinic filed an amicus brief supporting the freedom of speech on behalf of the International Documentary Association (IDA) in the California Court of Appeal in the case of FX Networks v. de Havilland. The case is now on appeal, for which the IPAT Clinic was retained to write an amicus brief representing the views of documentarians concerned that an affirmation will drastically limit their freedom of speech as it relates to depicting real public figures. Certified Law Students and Clinic members Emily Asgari and Stephen Kristedja participated in the preparation of the brief.
The case’s central issue involves “the right of publicity” doctrine—the theory that a person is entitled to compensation if their image or likeness is used for marketing or other widely circulated purposes without their permission—and whether it can legally be used to curtail the First Amendment. In this case, the actress Olivia de Havilland is suing the acclaimed television series Feud: Bette and Joan—which recounts the notorious rivalry between Bette Davis and Joan Crawford—because she was unhappy with star Catherine Zeta-Jones’ portrayal of her. In denying FX Networks’ motion to strike, the trial court unspooled a stunning expansion of the right of publicity doctrine that could threaten any documentary film concerning a celebrity.
In speaking with the IDA, Ms. Asgari explained, “The problem with the trial court’s ruling was that the judge essentially stated that ‘literal depictions’ of a celebrity would be a violation of the celebrity’s right to publicity. That basically gives celebrities the ability to censor any depiction of themselves that they do not like. This is a departure from the law, and we think it pretty clearly violates our free speech protections.”
Mr. Kristedja adds, “Imagine a world where you couldn’t see a film about OJ Simpson, Lance Armstrong, or Tiger Woods simply because they are ashamed of their history and wish to censor it.” We feel strongly that documentary filmmakers’ freedom of speech is important to the public interest, given documentary’s role in informing a democratic public.
Below, we have included the Introduction and Summary of Argument of the brief in this post. For those interested in reading more about this issue, please click here to view Akiva Gottlieb’s article for IDA.
We at UCI’s IPAT Clinic will continue to keep a close eye on how the right of publicity affects freedom of speech, so stay tuned.
INTRODUCTION AND SUMMARY OF ARGUMENT
The public has long depended on documentaries and other journalistic works to provide insight into controversial subjects like murder, sexual abuse, law enforcement, courts, politics, abuse of power, and how our culture and social values are shaped by celebrities and other public figures. For as long as the right of publicity has existed in California, documentary filmmakers have been immunized from right of publicity liability by the strong First Amendment protection for free expression and a free press. But that constitutional protection has been endangered by the court decision below.
In a stunningly broad decision, the trial court has held that it is against the law for a filmmaker to make an unauthorized portrayal of a celebrity with the goal of “mak[ing] the appearance of the [celebrity] as real as possible,” using a “literal depiction or imitation of a celebrity” if that use can be construed as “for commercial gain” or having an “economic benefit.” The court’s decision paints a target on the back of all creators of documentaries and other journalistic works. It gives celebrities—and any other public figure—the right to demand budget-busting payments and impose private censorship of constitutionally protected, non-commercial speech.
If this Court does not correct the decision below, countless past and future unauthorized documentary films about celebrities will be in danger. Consider the unauthorized documentary films about O.J. Simpson (O.J.: Made in America (ESPN Films 2016)), Harvey Weinstein (Unauthorized: The Harvey Weinstein Story (Melbar Entertainment Group 2011)), Martha Stewart (Martha, Inc.: The Story of Martha Stewart (Jaffe/Braunstein Films 2003)), Jerry Sandusky (Happy Valley (A&E IndieFilms 2014)), and Lance Armstrong (Stop at Nothing: The Lance Armstrong Story (ABC Commercial 2014)). All of these films feature a “literal depiction” of their celebrity subjects. These filmmakers no doubt expected their films would result in “commercial gain” and “economic value,” deriving from both the filmmaker’s artistry and analysis on the one hand, and from “the fame of the celebrities depicted” on the other.
It is hard to imagine that any of these celebrities would have freely given permission to these works. Most likely, they would have demanded major changes to the works to cut out unflattering scenes, and demanded impossibly high fees. Either tactic would have killed or disemboweled the projects. The same is true for many other types of works: if the lower court’s decision were allowed to stand, celebrities would have veto power not only over documentaries, but over docudramas, biopics and any other dramatized works focusing on a celebrity’s life. The decision is so broad, in fact, that it suggests that other “literal” portrayals of celebrities could be in danger—such as photographs used in magazines, newspapers, and news websites.
Until now, works examining real-life events have been perfectly legal when it comes to the right of publicity. California courts have held repeatedly that the First Amendment and right of publicity statute provide immunity to documentaries and other journalistic works like news reports, magazine articles, and non-fiction books. California courts have also held that the First Amendment protection extends to dramatized films and television programs based on real-life events. The court below has put that long-standing protection in jeopardy with its unconstitutional interpretation of the right of publicity. This Court should correct the lower court’s decision and reaffirm the First Amendment and statutory protection for non-commercial speech about celebrities and other public figures.
The First Amendment requires a narrow interpretation of all laws restricting speech, including the right of publicity, which must be subjected to strict scrutiny. This Court should therefore narrowly construe the right of publicity and direct that it applies only to commercial speech, not to docudramas like Feud or documentaries like O.J.: Made in America (Plan B Entertainment 2017).