## Facts

- FX produced *Feud: Bette and Joan*, an eight-episode docudrama about the public rivalry between Bette Davis and Joan Crawford.
- Olivia de Havilland, a well-known actress and contemporary of Davis and Crawford, was portrayed in the series by an actor without de Havilland’s consent.
- The series depicted de Havilland as commenting on Hollywood history, including a staged “interview” at the 1978 Academy Awards that did not occur.
- In the series, the de Havilland character referred to her sister Joan Fontaine as “a bitch”; de Havilland alleged her real statement differed and was less vulgar.
- De Havilland alleged the dramatized scenes falsely implied she participated in gossip and acted in ways inconsistent with her character and history.
- The character’s screen time was limited (about 4.2% of total running time).
- De Havilland sued for statutory right of publicity (Cal. Civ. Code § 3344), common-law misappropriation, false light, and unjust enrichment.
- FX filed an anti-SLAPP motion (Cal. Civ. Proc. Code § 425.16); the trial court denied the motion, and FX appealed.

## Issues

1. Whether claims based on depicting a real, living public figure in a docudrama arise from protected activity under California’s anti-SLAPP statute.
2. Whether the First Amendment bars statutory and common-law right-of-publicity/misappropriation liability for a dramatized portrayal in an expressive work.
3. Whether the portrayal satisfied California’s “transformative use” doctrine, defeating right-of-publicity and misappropriation claims.
4. Whether a public-figure plaintiff showed a probability of prevailing on a false light claim, including proof of actual malice.
5. Whether a derivative unjust enrichment claim can survive when the underlying tort claims are stricken.

## Decision

- The Court of Appeal reversed the order denying FX’s anti-SLAPP motion and directed the trial court to grant it in full.
- The court held the challenged conduct was protected speech connected to a matter of public interest (a dramatization of real, widely known Hollywood events involving public figures).
- The court concluded the First Amendment barred de Havilland’s statutory and common-law right-of-publicity/misappropriation claims as applied to the docudrama.
- Applying the transformative use test, the court found the portrayal was part of a broader expressive narrative containing significant creative elements, not a mere literal or commercial appropriation of identity.
- The court held de Havilland did not show a probability of prevailing on false light because the depiction was not highly offensive in context and she produced no admissible evidence of actual malice.
- The court struck the unjust enrichment claim as dependent on the failed underlying claims.
- FX was entitled to attorney’s fees and costs under the anti-SLAPP statute.

## Legal Principles

- A docudrama or similar expressive work about real events and public figures constitutes speech on matters of public interest and may trigger anti-SLAPP protection.
- The First Amendment protects expressive works that portray real people, even when the work is sold for profit and includes dramatization, composite scenes, or paraphrased dialogue.
- Under California’s transformative use test, right-of-publicity and misappropriation claims are defeated when the defendant adds significant creative elements and uses a person’s likeness as one component of an original expressive work.
- False light claims by public figures are subject to First Amendment limits similar to defamation, including the requirement to prove actual malice (knowledge of falsity or reckless disregard) with admissible evidence.
- Minor inaccuracies or dramatized staging in an expressive work do not establish false light absent a portrayal that is highly offensive to a reasonable person and supported by proof of actual malice.
- A restitutionary or unjust enrichment theory fails when it is derivative of tort claims that are constitutionally barred or otherwise not likely to succeed.

## Conclusion

The court held that a dramatized television portrayal of a living public figure in a docudrama about matters of public interest is protected by the First Amendment, and that the plaintiff failed to show a probability of success on publicity and false light theories; it therefore ordered the claims stricken under the anti-SLAPP statute and awarded fees to the defendants.


De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (Cal. Ct. App. 2018)