Interesting petition

Havilland v. FX Networks LLC, Supreme Ct. Docket No. 18-453

Olivia de Havilland is a 102-year-old, two-time Academy Award winning best actress, who played Melanie Hamilton in the movie classic, “Gone with the Wind.” Of particular relevance here, she is also a woman who lives her life devoted to high moral and ethical standards.

FX Networks, LLC and Pacific 2.1 Entertainment Group, Inc. appropriated the literal name and identity of Olivia de Havilland, without consent or compensation, to be the narrator of a mini-series, “Feud: Bette and Joan,” devoted to the theme of women actors catfighting, using vulgar language, and backstabbing one another. FX, claiming artistic license, admits that many of the statements and vulgar language attributed to de Havilland were fabricated and knowingly untrue.

The California Court of Appeal reversed the trial judge’s denial of a Motion to Strike, and dismissed Miss de Havilland’s claims, based on a First Amendment defense for docudramas.

The Question for the Court is: Are reckless or knowing false statements about a living public figure, published in docudrama format, entitled to absolute First Amendment protection from claims based on the victim’s statutory and common law causes of action for defamation and right of publicity, so as to justify dismissal at the pleading stage?

11 thoughts on “Interesting petition

  1. 5

    Interesting – are docudramas known to be false usually? From what this sounds like I would take it as reporting things she actually said. The fact they have admitted they knew some things were false when they said them would seem to cover the New York Times defemation case. Not seeing the connection to the statute but as a strong capitalist statute is not my favorite thing anyway. Not seeing the connection to patent law either but still as this is an IP blog thank you for posting very interesting!

    1. 4.1

      Excellent link Joachim, both for what it states and what it does not state.

    2. 4.2

      There’s very little similarity. The bull statute was deposited by the artist without authorization. Arturo Di Modica is a rather pathetic snowflake whose lawsuit deserves to be roundly mocked, just as his ugly artwork deserves be stared down by a fearless girl.

      Olivia deH, on the other hand, is a living human being whose reputation is being (allegedly) distorted by some l0wlife “docudrama” writers playing very fast and loose with facts. If they were trying to present a parody or some alternate history (i.e., a fictional work, labeled as such) to make a point, the outcome would (or should) be different. But that doesn’t seem to be what’s happening here. It can’t really be the case that as long as you label something as “docudrama” that you can depict whatever you wish to depict about a living public figure, regardless of the impact that depiction might have on that person’s reputation.

      1. 4.2.1

        If they were trying to present a parody or some alternate history (i.e., a fictional work, labeled as such) to make a point, the outcome would (or should) be different.

        You do understand what a “docu-DRAMA” is, right?

        Hint: it is NOT a documentary.

  2. 3

    Given the (rather conclusory) assertions by some as to the First Amendment drivers for non-eligibility (or other reasons to deny patent protection to innovation), the topic is indeed interesting.

    That being said, I think that the following, taken in steps, may be pertinent to discussions:

    published in docudrama format,

    In other words, a literary work stated to not be a true representation…

    entitled to absolute First Amendment protection

    Hmm, what does “absolute” mean?

    from claims based on the [_] causes of action

    (such causes related to statutory and common law, i.e., defamation and right of publicity)

    …apparently, such are some things that impact the “absolute” notion noted above.

    1. 3.1

      Let us know when you finish your thought.

      1. 3.1.1

        Feel free to actually engage on the merits (since you’ve already gone into your drive-by monologue mode on the TAOS thread)…

  3. 2

    IMHO, this is the cutting edge of IP law. This along with “digital appropriation” (my term) recreating for example “Humphrey Bogart” or “John Wayne” as digital actors. Putting them in roles they would have never taken in life – and basically defaming them. The technology has overtaken the contracts, which never anticipated the rendering technology. 2 cents.

    1. 2.1

      iwasthere: I think you are right.

  4. 1

    If they grant cert, they ought to make her case special based on her age :-)

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