## Facts

- Kenneth Kelly, a San Diego police officer assigned to a border-area enforcement unit, was depicted in a nonfiction book about the unit and its activities.
- Before publication, Kelly executed a “personal depiction waiver” granting the author and publishers the right to depict or portray him “either factually or fictionally” and “to such extent and in such manner” as they, in their discretion, determined.
- After publication, Kelly alleged the book contained false statements and inaccuracies that portrayed him negatively, including alleged criminal conduct, irresponsible behavior, fabricated marital episodes, and statements disparaging fellow officers that he denied making.
- Kelly claimed the book improperly mixed factual and fictional material and argued the waiver required defendants to choose either a factual or a fictional portrayal, not both.
- Kelly sued the author and publishers for invasion of privacy, libel, slander, breach of contract, fraud, and negligent infliction of emotional distress.
- The trial court sustained defendants’ demurrers without leave to amend based on Kelly’s consent in the waiver and dismissed the action.

## Issues

1. Whether Kelly’s depiction waiver constituted consent that barred claims for invasion of privacy, defamation, and related torts arising from the book’s portrayals.
2. Whether the phrase “either factually or fictionally” required defendants to select an exclusive mode of portrayal, prohibiting a blended factual-fictional depiction.
3. Whether alleged falsity or inaccuracy could take the portrayals outside the waiver’s scope at the pleading stage, permitting amendment to state viable claims.

## Decision

- The Court of Appeal affirmed the dismissal.
- The waiver was broad and unambiguous and operated as valid consent, defeating Kelly’s privacy, defamation, and related claims as pleaded.
- “Either factually or fictionally” did not require an exclusive choice; it authorized portrayals that could include factual elements, fictional elements, or a combination.
- Accepting the complaint’s allegations as true, the waiver’s scope still encompassed the challenged portrayals; therefore, the demurrers were properly sustained without leave to amend.

## Legal Principles

- Consent to publication and portrayal, given by a written depiction waiver, can be a complete defense to privacy and defamation claims arising from the authorized portrayal.
- Contract language permitting depiction “factually or fictionally” and granting discretionary control to the producer will be construed in context to allow dramatization and blended treatments consistent with the waiver’s purpose.
- On demurrer, courts may consider a controlling written waiver and may dismiss without leave to amend when the waiver forecloses liability as a matter of law and no amendment could avoid the consent defense.

## Conclusion

The court held that Kelly’s signed depiction waiver authorized the manner of portrayal used in the book, including blended factual and fictional presentation, and therefore barred his tort and contract-based claims; dismissal on demurrer without leave to amend was affirmed.


Kelly v. William Morrow & Co., 186 Cal. App. 3d 1625, 231 Cal. Rptr. 497 (Ct. App. 1986)