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Advertising, Marketing & Promotions:
6th Edition: Trends in Marketing Communications Law

Entertainment >> Right of Publicity and the Rise of True Crime

July 10, 2019

Among the many high-profile entertainment industry headlines in 2018, one case in particular stands out for its impact on the rising trend of “true crime” entertainment. Olivia de Havilland, a leading lady during Hollywood’s “Golden Age,” sued FX Networks and producer Ryan Murphy, alleging her unauthorized portrayal in the show Feud: Bette and Joan violated her right of publicity and portrayed her in a false light. After conflicting decisions from the lower court and appellate court, de Havilland, now 102, filed a petition for certiorari in late 2018, seeking to bring her case before the U.S. Supreme Court. However, her petition was denied and, consequently, the decision of the California Court of Appeals still stands.

The California Court of Appeals found that FX and Murphy were not required to obtain de Havilland’s permission, and that the First Amendment protected FX and Murphy from the actress’s claims. The Court noted, “[w]hether a person portrayed in … expressive works is a world-renowned film star — ‘a living legend’ — or a person no one knows, 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.” De Havilland’s false light claims were similarly rejected because the court did not find actual malice present in the nature of her portrayal in the show. The Court concluded its decision by noting that de Havilland’s position would put “authors, filmmakers, playwrights, and television producers in a Catch-22. If they portray a real person in an expressive work accurately and realistically without paying that person, they face a right of publicity lawsuit. If they portray a real person in an expressive work in a fanciful, imaginative — even fictitious and therefore ‘false’ — way, they face a false light lawsuit if the person portrayed does not like the portrayal.” This result would have a chilling effect on the exercise of First Amendment rights by artists and filmmakers.

The de Havilland case is notable in light of the rising popularity of docudramas, especially in the genre of “true crime.” As producers have explored, dramatized and monetized real life events of people impacted by tragedy, these stories have spawned lawsuits alleging right of publicity, false light and defamation claims. Within the past year alone, three high-profile lawsuits have been filed on these grounds: in July 2018, the estate of John B. McLemore sued the makers of the hit podcast “S-Town” and in January 2019, JonBenét Ramsey’s family settled a defamation lawsuit it had brought against CBS and the producers of the documentary The Case of: JonBenét Ramsey.

Given the stakes and personal sensitivities involved in “true crime” stories, producers seeking to create documentary work about real people should proceed with caution, and budget for potential litigation defense.

Key Takeaways:

  • Individual rights of privacy and publicity are defined on a state-by-state basis, leading to a lack of clear consensus on the legal standards required for these claims.
  • Works of artistic expression, including documentaries, works of historical fiction, and docudramas, are typically given full protection under the First Amendment. Nevertheless, producers of “true crime” and similar stories should still expect legal challenges.
  • To decrease the likelihood of a claim, it is best to get consent clearly and in writing from the individuals who are the subjects of these stories. Even if a producer ultimately prevails under the First Amendment, the road to victory can be long and expensive.