From East Coast to West Coast: Actresses Lose Right of Publicity Cases as Courts Rule in Favor of the First Amendment Rights of Content Creators

by Bryan Cave

The end of March brought favorable rulings – from opposite coasts – for right of publicity defendants.  In both de Havilland v. FX Networks, et al., Case No. B285629, 2018 WL 1465802 (Cal. Ct. App. Mar. 26, 2018) and Lohan v. Take-Two Interactive Software, Inc., Case No. 24, 2018 WL 1524714 (N.Y. Mar. 29, 2018), California and New York state appellate courts ruled in favor of content creators in finding that they did not violate the right of publicity of Olivia de Havilland and Lindsay Lohan, respectively, in the miniseries “Feud: Bette and Joan” and video game Grand Theft Auto V.  Both rulings are victories for content creators as courts continue to balance the First Amendment rights of such creators against the privacy and publicity rights of famous individuals.

De Havilland v. FX Networks

On March 26, 2018, a California appeals court ruled that the First Amendment protects content creators portraying individuals in expressive works.  The appeals court wrote that “whether a person portrayed in one of these expressive works is a world-renowned film star [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, 2018 WL 1465802, at *1.

In March 2017, FX Networks aired an eight-part “docudrama” miniseries, Feud: Bette and Joan, about film stars Bette Davis and Joan Crawford.  Actress Catherine Zeta-Jones played Olivia de Havilland in two scenes.  De Havilland claimed that Feud unfairly presented her as a profane gossiper. She sued FX Networks for violation of the common law privacy tort of misappropriation, California publicity law, false light invasion of privacy, and unjust enrichment, all related to the alleged unauthorized use of her likeness. 

In the trial court proceedings, FX filed a motion to strike under California’s anti-SLAPP law, whose purpose is to expedite litigation that may inhibit free speech and other protected activities.  The trial court denied FX’s motion to strike, finding that the docudrama constituted speech in a public forum and finding that de Havilland had sufficiently met her burden of proof that the lawsuit had the required “minimal merit” because “no compensation was given [to de Havilland] despite using her name and likeness.”  Id. at *3.

The California appeals court reversed the trial court’s decision in full, stating that “[t]he First Amendment protects expressive works and the free speech rights of their creators.  Some of these works are fiction.  Some are factual.  And some are a combination of fact and fiction.  That these creative works generate income for their creators does not diminish their constitutional protection.”  Id. at *1.  The appeals court further held that expressive works – like Feud – constitute “speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life … and transform them into art, be it articles, books, movies, or plays.”  Id. at *7.

The decision is a win for creators of expressive content, as a creator does not need to acquire the rights in order to use an image or likeness in most circumstances.  According to de Havilland’s attorneys, she will appeal the decision.

Lohan v. Take-Two Interactive Software

On March 29, 2018, the State of New York Court of Appeals, New York’s highest state appellate court, ruled that Take-Two Interactive Software did not violate New York right of publicity laws because computer-generated images of a female character in Grand Theft Auto V (“GTAV”) were not recognizable as Lindsay Lohan.   

Lohan filed her lawsuit against Take-Two Interactive Software in August 2014, alleging the GTAV character “Lacey Jonas” was her “look-a-like” and that her portrait and voice were misappropriated.  While the trial court denied Take-Two Interactive’s motion to dismiss, the intermediate appellate court reversed that decision, finding that Lohan’s privacy was not violated because Take-Two Interactive did not use her name, portrait or picture.  The appellate court also found that the video game did not fall under the New York statutory definition of “advertising” or “trade,” but was rather a “work of fiction or satire.”  That decision by the appellate division was then appealed to the New York Court of Appeals.  

In analyzing the issues of the case, the Court of Appeals focused very specifically on whether the avatar was Lohan.  The Court first concluded that “an avatar (that is, a graphical representation of a person, in a video game or like media) may constitute a ‘portrait’ within the meaning of article 5 of the Civil Rights Law.”  Lohan, 2018 WL 1524714, at *3.  The Court then went on to say, however, that Lohan’s complaint should be dismissed because “the artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman that are not reasonably identifiable as [Lohan.]”  Id. at *4.  The Court also noted that “[i]t is undisputed that defendants did not refer to plaintiff in GTAV, did not use her name in GTAV, and did not use a photograph of her in that game. … [T]he ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore not actionable . . . ”  Id. at *5.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bryan Cave | Attorney Advertising

Written by:

Bryan Cave

Bryan Cave on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.