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Wednesday, March 07, 2018


Lara Fowler

The law deals differently with 1) the living and the dead, and 2) people who have an economic interest in their image and those who don’t. There is no threat to docudramas if those docudramas take the time to research and present historically accurate information about living people. There is only a threat if they want to lie. As to the permission issue, they did not have to ask her permission if they were going to be using reliable sources and presenting an image that is in line with the historical record. This image was NOT in line with the historical record, and the book from which they pulled the “I don’t play bitches” line had no footnote for that line, and the book itself was salacious. There are plenty of very reputable sources they could have chosen from (reputable, by the way, in the same way we judge news sources to be reputable or not), but they chose this one and should be held accountable for misinformation that comes from carelessness in choice of sources. Finally, as to the issue of public figures having more control over their images than private people—I’m not advocating for that. Everyone should have control over their image. But in the legal world we live in, the courts have made clear that public people who benefit from their image DO have more right to protect it.

Lara Fowler

I've been following the case closely since the beginning. I think some things need to be said in response to this article to clarify what the arguments actually are.

First of all, Feud's creation of the fake interview in combination with other, true statements and events without distinguishing between them is very problematic. It leads viewers to believe that what's false is true, and if they find out that an event was created for the show, it leads them to question the validity of the true statements and events. It fits right into this era of Trump. I have seen just about everything Dame Olivia has ever done, and I was left confused thinking that the interview Feud created was a real interview I had somehow missed. If I was fooled, other people certainly were.

Second of all, this is also a financial issue. Dame Olivia has spent time, effort, and money maintaining her dignified, refined temperament under enormous outside pressure that might threaten to destroy it. These qualities have brought her work and a livelihood. By using her identity without her permission or input, and putting vulgar words in her mouth, what FX has done amounts to theft. Courts have decided, specifically in the Zacchini case, that an individual who benefits economically from his or her image is entitled to be compensated for the time and effort it takes to produce something of interest to the public. Not only was Dame Olivia not compensated, but her image was used with reckless disregard.

You might be inclined to refer to the issue of Tonya Harding's mother and her portrayal in I, Tonya, and say that docudramas in general are at risk here. They're not, and the two situations are not comparable. Courts have shown that they recognize when a person derives significant economic benefit from a person's image. Tonya Harding's mother is not a public figure in the same way that Olivia de Havilland is, and does not depend on her image for her livelihood. De Havilland does, and always has. The fact that the court threw out Sarver v Chartier shows us that if Tonya Harding's mother were to bring a suit in the California court, she'd probably lose. De Havilland's case is closer to Zacchini.

Ken White

Ms. Smith:

You assert that California's anti-SLAPP statute requires the plaintiff "to show with admissible evidence, that it will likely prevail at trial. This is a very high bar." This is a common, but seriously misleading, misrepresentation of the statute. If a movant carries its burden of showing that a complaint is targeted at protected speech, California's anti-SLAPP statute does require the plaintiff to come forward with admissible evidence and establish a "probability" that they can prevail. However, that "probability" requires only that the plaintiff come forward with any evidence which, if accepted, would be sufficient. In other words, it only requires the plaintiff to satisfy the same test they'd have to satisfy to survive summary judgment. This is not a high bar at all. California courts have repeatedly held that this is consistent with the right to a jury trial of civil claims, just as the summary judgment statute is.

Suzelle Smith

As supporters of Public Citizen, it is disappointing to see this tortured report of what is at issue in the de Havilland v FX case. The right to publicity in California is very narrow. It exempts accurate use of the name and identity of a living celebrity in news, public interest reports, and sports’ broadcasts. There is a separate statute for deceased individuals, which exempts movies specifically.
Further, for anything published, all cases implicating the First Amendment require clear and convincing evidence of actual malice and are subject to the California Anti-SLAPP statute, which includes an award of attorneys’ fees to defendant from a losing plaintiff, but not to a winning plaintiff from a losing defendant. The statute, in fact, presents a serious incursion on the Constitutional right to a jury trial, because it forces plaintiff without any discovery, to show with admissible evidence, that it will likely prevail at trial. This is a very high bar. The Eastwood case, which Public Citizen decries, held that knowingly false statements about real people are not as a matter of law, in the “public interest.” That Public Citizen wants to protect knowing falsehoods about living people is, well, sad, and incredibly right wing. Donald Trump lines up completely with your position – the more lies to the public and the more fake news the better.
If Dame Olivia loses this case, the public and honest reporters and writers, dedicated to the truth, will suffer. The winners will be that portion of the Hollywood film industry which believes it can include falsehoods in its productions about living people to sensationalize films and increase profits, knowing a portrayal to be false or who recklessly do not investigate the truth or falsity of what they publish.
Public Citizen needs to at least get the facts straight for the case. “Feud” has Miss de Havilland, the narrator of the entire series, in a fake interview, calling her own sister, actor Joan Fontaine, a “bitch”, to members of the profession, to impugn her sister’s acting reputation. Shame on you, Paul. Have you told your mother your position? Miss de Havilland is entitled to have a jury listen to the actual evidence and make a decision. Or are you against that Constitutional, right?

Suzelle M. Smith,
Counsel for Miss Olivia de Havilland

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