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State high court rejects de Havilland's right-of-publicity case

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.

The California Supreme Court has rejected a famous actor's appeal of a right-to-publicity case in which she claims the portrayal of her by another actress in a TV series cast her in an undesirable light. 

California's right-of-publicity statute broadly allows a person to sue for money damages and to recoup his or her legal fees if someone else has -- without consent -- used the person's "name, voice, signature, photograph, or likeness" in any way, including in products or advertising.

Rights of publicity exist in tension with the constitutional right to free speech, especially in issues considered of "public concern." 

In May, we told you about the right-of-publicity case of centenarian actress Olivia de Havilland of "Gone with the Wind" fame and her legal battle over a negative portrayal of her in a TV docudrama. She alleges that she did not give permission to use her identity in the series and that false dialog attributed to her there harms her professional reputation. 

While the state trial court had held that de Havilland's case had enough merit to go to trial, the California Court of Appeal reversed that finding. The appeals court felt that de Havilland's portrayal in the series was constitutionally protected as free speech, even though it was "disagreeable." 

De Havilland asked the state Supreme Court to reverse this decision because, she argued, the producers' free speech rights should not trump her right of publicity over her own persona. 

According to Deadline Hollywood, the state's highest court on July 11 turned down her right-of-publicity appeal without explanation and she (at 102) is considering petitioning the U.S. Supreme Court.  





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