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US high court rejects de Havilland's right of publicity suit

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.

Throughout 2018, we have followed in this space two-time Oscar-winning actor Olivia de Havilland's lawsuit against the creators of FX's docudrama series, Feud: Bette and Joan. On January 7, the U.S. Supreme Court refused without any comment to hear her case, in which the 102-year-old plaintiff sought review of the California Court of Appeal's holding that the series' makers' First Amendment right to expression trumped the actor's right of publicity and claim of defamation.

The California Supreme Court also refused to review the Court of Appeal's holding.

In essence, the appeals court said that the creators of the docudrama, who allegedly took some license with the truth, had a stronger First Amendment right of speech and expression in their creative work than de Havilland had in her right to control her image and persona in commercial settings.

De Havilland objects to the negative depiction of her without permission or compensation, claiming harm to her reputation. In the series, de Havilland alleges that actor Catherine Zeta-Jones falsely portrayed de Havilland as a gossip who used objectionable language to describe de Havilland's sister, Joan Fontaine.  

According to Forbes, de Havilland and her attorneys issued a statement in which they expressed disappointment in the US Supreme Court's rejection of her petition. The statement claimed that the state appeals court "turned the First Amendment upside down and without doubt more harm to individuals and public deception will result." They urged a person harmed in the future "for the sake of Hollywood profits [to] have the courage to stand on the shoulders of Miss de Havilland and fight for the right to defend a good name and legacy against intentional, unconsented exploitation and falsehoods."

The courts, as well as First Amendment advocates everywhere, disagree.

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