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De Havilland to ask highest court to hear 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.

At our law firm, we represent people involved in disputes about the right of publicity. The right of publicity means that a person's name, photograph, or the like cannot be used for commercial purposes without that person's permission. 

California state law specifically says that a person who uses another's "name, voice, signature, photograph, or likeness, in any manner ... without that person's prior consent" may be liable in a lawsuit for damages and legal costs.  


The "Feud" dispute 

In this space, we have been following a right-to-publicity, false-light and unjust-enrichment case brought by legendary actress Olivia de Havilland in California state court alleging that Ryan Murphy's docudrama series on the FX Network called Feud: Bette and Joan portrayed de Havilland's personality in a false and negative light. 

De Havilland, who is 102 years old, is famously protective of her good reputation and reportedly objects strongly to the portrayal of her by the actress, Catherine Zeta-Jones, in the series. She alleged in her lawsuit that the producers used her persona in the show without permission and that fictional dialog used by her character harmed her reputation. 

The trial court was going to let the case go to trial, but the state Court of Appeal reversed on free speech grounds. The California Supreme Court affirmed. 

Latest development 

According to The Hollywood Reporter, de Havilland's lawyer has said that she will ask the U.S. Supreme Court to hear the case by filing a petition this month (September 2018). The attorney is quoted as saying that the "issue for the SCOTUS is whether or not the First Amendment creates an absolute immunity from suit for publishers of docudramas or whether that format ... is governed by ... actual malice ..." 

This issue focuses on the defamation aspect of the claim, namely: In order to win a defamation claim in the context of such a docudrama about a public figure, can the public figure show proof of actual malice and thereby surmount any First Amendment defenses?

If the high court grants her petition, the decision will be an important one for celebrities and others who want to protect the use of their personas from exploitation.





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