In January, the IPAT Clinic filed an amicus brief on behalf of the International Documentary Association in the closely-watched de Havilland v. FX Networks case, in which Olivia de Havilland sued FX over the portrayal of her in the hit miniseries FEUD: Bette and Joan. Today, the Court of Appeal issued its opinion, and it is a massive victory for the First Amendment. “The trial court’s ruling leaves authors, filmmakers, playwrights, and television producers in a Catch-22,” wrote the Court.
“If they portray a real person in an expressive work accurately and realistically without paying that person, they face a right of publicity lawsuit. If they portray a real person in an expressive work in a fanciful, imaginative — even fictitious and therefore “false” — way, they face a false light lawsuit if the person portrayed does not like the portrayal. The right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals.”
Needless to say, we are thrilled for the IDA and for documentary filmmakers everywhere–as well as creators of docudramas, biopics, or other fictional works–who now feel safer to explore history, popular culture, and current events as they see fit. This opinion is an important addition to a body of California court decisions holding that celebrities and other public figures cannot interfere with creative works even if they are commercial or speculate about real people.
Read the opinion here: