Right of Publicity

No One Owns History: De Havilland v. FX and the First Amendment Defense to Right-of-Publicity Claims

How California's appellate court used the First Amendment to dismiss Olivia de Havilland's publicity and false-light suit over the 'Feud' docudrama.

January 18, 2026
Vintage television studio set evoking a classic-Hollywood docudrama production
A docudrama about real people is fully protected speech, even when its subject objects to the portrayal. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

When the celebrated actress Olivia de Havilland sued the makers of Feud: Bette and Joan over a fictionalized version of herself, she tested a recurring fault line in American media law: when does a living person’s right to control the commercial use of her identity yield to the storyteller’s First Amendment right to dramatize real lives? In De Havilland v. FX Networks, LLC (Cal. Ct. App., 2d Dist., Div. Three, Mar. 26, 2018; No. B285629), a unanimous panel answered emphatically in favor of the storyteller. Justice Anne Egerton, joined by Presiding Justice Lee Edmon and Justice Halim Dhanidina, reversed the trial court and ordered the entire complaint stricken under California’s anti-SLAPP statute. The California Supreme Court denied review on July 11, 2018, and the United States Supreme Court denied certiorari on January 7, 2019 (No. 18-453), leaving the decision as a leading statement of how the First Amendment defeats publicity and false-light claims arising from expressive works about real people.

At a glance

  • Case: Olivia de Havilland v. FX Networks, LLC, et al., No. B285629 (Cal. Ct. App., 2d Dist., Div. Three, Mar. 26, 2018), certified for publication.
  • Posture: FX’s special motion to strike under California’s anti-SLAPP statute (Code Civ. Proc. § 425.16) was denied by the trial court; the Court of Appeal reversed and ordered the complaint stricken in full.
  • Claims: Statutory right of publicity (Civ. Code § 3344), common-law misappropriation, false-light invasion of privacy, and unjust enrichment.
  • Holding: Feud is fully protected speech; de Havilland could not show a probability of prevailing on any claim. The portrayal was transformative as a matter of law, and the challenged fictionalized moments were neither defamatory nor highly offensive.
  • Subsequent history: Review denied by the California Supreme Court (July 11, 2018); certiorari denied (Jan. 7, 2019).

The dispute grew out of FX’s 2017 anthology series dramatizing the rivalry between Bette Davis and Joan Crawford. Catherine Zeta-Jones portrayed de Havilland, who appeared in scenes including a fabricated interview at the 1978 Academy Awards and a line in which the de Havilland character referred to her sister, Joan Fontaine, as a “bitch.” De Havilland alleged she had used the gentler “dragon lady” and never gave such an interview. She sought to control how she was depicted—and to be paid for the use of her identity. The court’s response reframed the entire inquiry around who, in a free society, gets to tell stories about public life.

The First Amendment defense to right-of-publicity claims

The right of publicity protects a person’s economic interest in the commercial exploitation of her name, likeness, and persona. California codifies a statutory version in Civil Code section 3344 and recognizes a parallel common-law misappropriation tort. But the right has never been absolute. As the De Havilland court stressed, expressive works—books, films, plays, and television programs—are not “merchandise” akin to a t-shirt or a coffee mug bearing a star’s face. They are speech.

Because de Havilland’s claims targeted protected expressive activity, FX invoked the anti-SLAPP statute, which forces a plaintiff suing over speech to demonstrate a probability of prevailing before the case proceeds. The first prong was conceded: a television docudrama plainly arises from protected speech. The decisive question was the second prong—whether de Havilland could show her claims had minimal merit. The court held she could not, because the First Amendment supplied a complete defense.

The opinion’s most-quoted passage captures its philosophy. Whether the subject “is a world-renowned film star or a person no one knows,” the court wrote, “she or he does not own history. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.” The right of publicity, the panel reasoned, “cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals.” That principle is the doctrinal heart of the decision: a publicity claim cannot become a veto over how artists depict real events and the people who lived them.

Expressive works, docudramas, and the perils of “realism”

The trial court had reasoned, in essence, that because Feud aimed for realism—because Zeta-Jones looked and sounded like de Havilland—the portrayal was not sufficiently transformed and so lost protection. The Court of Appeal called this exactly backward. If accuracy and verisimilitude stripped a work of First Amendment cover, then the more faithful and lifelike a biographical drama, the more legally vulnerable it would become. “The more realistic the portrayal,” the court observed, the “more actionable” the work would be—a result the First Amendment “does not permit.”

This is a crucial corrective for the docudrama genre, which by definition blends documented fact with dramatic invention. Filmmakers compress timelines, invent dialogue, and stage composite scenes to convey emotional and historical truth. The court recognized that requiring permission—or imposing liability for unflattering or fictionalized moments—would chill the creation of works about public figures and public history. Importantly, the panel also rejected the notion that de Havilland’s fame made Feud a commercial appropriation of her identity; the series drew its value from the creators’ “creativity, skill, and reputation,” not from any borrowed celebrity drawing power.

The court further disposed of the false-light theory on the merits. A docudrama’s audience understands that it dramatizes rather than transcribes. The fabricated interview and the substituted insult, even if inaccurate, were not defamatory and would not be “highly offensive to a reasonable person.” Because the false-light claim failed, the derivative unjust-enrichment claim collapsed with it.

The transformative-use test—and the road not taken through Rogers

California courts evaluate First Amendment defenses to publicity claims primarily through the “transformative use” test the state Supreme Court adopted in Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001). That test asks whether a celebrity’s likeness is merely “one of the raw materials from which an original work is synthesized,” or whether the depiction “is the very sum and substance of the work in question.” Raw-material use is protected; wholesale appropriation of the persona as the product itself is not.

Applying Comedy III, the De Havilland panel held Feud transformative as a matter of law. De Havilland’s character was a vehicle within a larger, original dramatic narrative about ambition, aging, and the studio system—not a literal reproduction sold for its own sake. Notably, the court acknowledged the substantial academic and judicial criticism of the transformative-use test, which has been applied inconsistently across media (often protecting films and television while disfavoring comic books and video games), but concluded it was bound by Comedy III and that Feud satisfied the standard in any event.

The opinion did not rest on the alternative Rogers v. Grimaldi framework. Rogers, a Second Circuit decision, governs the use of identities and trademarks in the titles and content of expressive works, asking whether the use has artistic relevance to the underlying work and, if so, whether it is explicitly misleading. Some courts and commentators have urged the Rogers “relatedness” approach as a cleaner, more speech-protective screen for publicity disputes than the often-malleable transformative-use inquiry. De Havilland shows California’s continued allegiance to Comedy III, but its broad First Amendment reasoning—that no one owns history—reaches a result Rogers would likely also reach, since a real historical figure is plainly relevant to a docudrama about her own milieu.

Open questions

  • Which test should govern? De Havilland applied transformative use while flagging its flaws. Whether California will eventually embrace a Rogers-style relatedness screen, or some hybrid, remains unsettled—and the U.S. Supreme Court’s refusal to take the case left the doctrinal patchwork intact.
  • Where is the line for fabricated speech? The court tolerated invented dialogue and a fictional interview as non-defamatory. A more damaging fabrication—one that is provably false and reputation-destroying—might still support a defamation or false-light claim even within a protected docudrama.
  • Does the analysis travel to advertising and merchandise? The decision turns on Feud being an expressive work. The same persona used to sell an unrelated product would face the ordinary publicity regime, not the First Amendment shield.

Implications

  • Docudramas and biopics enjoy strong protection. Producers need not obtain the consent of the real people they depict, and unflattering or dramatized portrayals are not, without more, actionable.
  • Realism is a shield, not a liability. Faithful, lifelike depiction strengthens rather than weakens First Amendment protection—reversing the intuition that “looking too real” creates exposure.
  • Anti-SLAPP is a powerful early exit. California’s statute lets media defendants test publicity and privacy suits at the threshold, recovering fees and avoiding costly discovery when the speech is protected.
  • Publicity is not a censorship veto. The right protects against commercial appropriation, not against being portrayed in stories about public life.
  • False-light claims face a high bar in fiction-aware genres. Audiences expect dramatization, so isolated inaccuracies rarely clear the “highly offensive” threshold.

Frequently asked questions

Did Olivia de Havilland lose entirely? Yes. The Court of Appeal ordered her entire complaint stricken under the anti-SLAPP statute, the California Supreme Court denied review, and the U.S. Supreme Court denied certiorari, ending the case in FX’s favor.

Can a filmmaker depict a real, living person without permission? Generally yes, in an expressive work such as a film, book, or docudrama. De Havilland holds that the First Amendment protects such portrayals and that the right of publicity does not give subjects a veto over how they are depicted.

What is the transformative-use test? Drawn from Comedy III, it asks whether a person’s likeness is merely raw material synthesized into an original work (protected) or is itself the entire product being sold (not protected). The Feud portrayal qualified as transformative as a matter of law.

Authorities and sources