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Actress appeals right-of-publicity case to California high court

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

At our San Francisco law firm, we represent people whose identities have been exploited for commercial benefit without our clients' permission. The "right of publicity" means that a person's "name, voice, signature, photograph, or likeness" may not be used without consent to advertise or sell products, according to the California right-of-publicity statute. We also defend right-of-publicity claims.

Right-of-publicity law is very complex. In California, claims may be brought under both statutory and common law (court-made law). There is a related false-advertising cause of action under the federal Lanham Act as well as other potentially related claims like right of privacy, misappropriation, defamation and others.

These rights to protect a person's identity from commercial exploitation exist in tension with constitutional rights to free speech and expression, so the legal issues can be difficult to sort out in each situation. Unsurprisingly, right-of-publicity claims can be the subject of intense legal negotiation and, when settlement is not possible, in trial.

The Abdul-Jabbar example

The 1996 case Abdul-Jabbar v. General Motors Corporation illustrates the nature of the California right of publicity. In that case, GMC had used iconic basketball player Kareem Abdul-Jabbar's former name in a vehicle advertisement on television during an NCAA tournament. Abdul-Jabbar had not given permission, but GMC said it could use the name because Abdul-Jabbar had "abandoned" his former name.

Reversing a lower court, the U.S. Court of Appeals for the Ninth Circuit said that Abdul-Jabbar had alleged a fact scenario that could state a claim under the California right-of-publicity statute as well as common law. The statute says "name or likeness," which the court said was "not limited to present or current use," so a birth name could potentially state a valid claim.

Olivia de Havilland's lawsuit

Those in the entertainment industry are watching an appeal filed May 4 in the California Supreme Court by 101-year-old Academy Award-winner Olivia de Havilland, made famous by her role as Melanie in the classic movie "Gone with the Wind." She objects to the portrayal of her in the television series "Feud: Joan and Bette" on the FX Network.

De Havilland did not give permission to use her identity and was not compensated.

(The link above is to an article that also contains the text of the petition for review.) 

The "docudrama" was based on the volatile relationship between Joan Crawford and Bette Davis. De Havilland is portrayed by Catherine Zeta-Jones in the series, in which Zeta-Jones' character used a derogatory term to describe de Havilland's sister, actor Joan Fontaine. The term used in the series was substituted by the writers for "dragon lady," the phrase de Havilland had actually used, according to The Hollywood Reporter.

The plaintiff objects to the substitution, saying that it casts her in a poor light and has a different, objectionable meaning. She also objects to other negative, false statements attributed to her in the series.

Path of the lawsuit

De Havilland sued FX and Ryan Murphy Productions last year in Los Angeles County Superior Court for statutory right of publicity as well as for misappropriation and false light invasion of privacy.

The trial court denied defendants' motion to strike the lawsuit under the anti-SLAPP law, a way to challenge a lawsuit based on alleged violation of constitutional rights to free speech, among others, in matters of public concern. The trial court said that while the series dealt with a matter of public concern, de Havilland had shown the "minimal merit" of her claim for her case to go forward.

The California Court of Appeal disagreed, finding that the series was protected constitutional speech and that the "right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity's image by censoring disagreeable portrayals."

De Havilland is asking the state Supreme Court to reverse on several grounds but, regarding the right to publicity, she argues that the anti-SLAPP holding, based on the free speech rights of the producers, eliminates her rights to petition and to a jury trial on her right of publicity claim.

The legal and entertainment communities will watch with interest to see whether the court grants the petition and, if so, its decision.

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