Filed 3/26/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

OLIVIA DE HAVILLAND,

Plaintiff and Respondent,

v.

FX NETWORKS, LLC et al.,

Defendants and Appellants.

B285629

(Los Angeles County

Super. Ct. No. BC667011)

APPEAL from an order of the Superior Court of Los 

Angeles County, Holly E. Kendig, Judge. Reversed with 

directions.

Munger, Tolles & Olson, Glenn D. Pomerantz, Kelly M. 

Klaus, Fred A. Rowley, Jr., and Mark R. Yohalem for Defendants

and Appellants.

Horvitz & Levy, Frederic D. Cohen and Mark A. Kressel for 

Motion Picture Association of America, Inc. and Netflix, Inc. as 

Amici Curiae on behalf of Defendants and Appellants.
Davis Wright Tremaine, Kelli L. Sager and Rochelle L. 

Wilcox for A&E Television Networks, LLC, Discovery 

Communications, LLC, Imperative Entertainment, LLC, Urban 

One, Inc., Critical Content, LLC, Reporters’ Committee for 

Freedom of the Press, and First Amendment Coalition as Amici

Curiae on behalf of Defendants and Appellants.

Jennifer E. Rothman and Eugene Volokh for Intellectual 

Property and Constitutional Law Professors as Amici Curiae on 

behalf of Defendants and Appellants.

Daniel K. Nazer for Electronic Frontier Foundation, 

Organization for Transformative Works, and Wikimedia 

Foundation as Amici Curiae on behalf of Defendants and 

Appellants.

Jack Lerner, UCI Intellectual Property, Arts, and 

Technology Clinic, for International Documentary Association as 

Amicus Curiae on behalf of Defendants and Appellants.

Howarth & Smith, Don Howarth, Suzelle M. Smith, and 

Zoe E. Tremayne for Plaintiff and Respondent.

Duncan W. Crabtree-Ireland and Danielle S. Van Lier for 

Screen Actors Guild-American Federation of Television and 

Radio Artists as Amicus Curiae on behalf of Plaintiff and 

Respondent.

_________________________

2
Authors write books. Filmmakers make films. Playwrights 

craft plays. And television writers, directors, and producers 

create television shows and put them on the air -- or, in these 

modern times, online. The First Amendment protects these 

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. The First Amendment does not require 

authors, filmmakers, playwrights, and television producers to 

provide their creations to the public at no charge.

Books, films, plays, and television shows often portray real 

people. Some are famous and some are just ordinary folks. 

Whether a person portrayed in one of these 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.

In this case, actress Olivia de Havilland sues FX Networks, 

LLC and Pacific 2.1 Entertainment Group, Inc. (collectively FX),

the creators and producers of the television miniseries Feud: 

Bette and Joan. In the docudrama about film stars Bette Davis 

and Joan Crawford, an actress plays de Havilland, a close friend 

of Davis. De Havilland alleges causes of action for violation of 

the statutory right of publicity and the common law tort of 

misappropriation. De Havilland grounds her claims on her 

assertion -- which FX does not dispute -- that she “did not give 

[her] permission to the creators of ‘Feud’ to use [her] name, 

identity[,] or image in any manner.” De Havilland also sues for 

false light invasion of privacy based on FX’s portrayal in the 

3
docudrama of a fictitious interview and the de Havilland 

character’s reference to her sister as a “bitch” when in fact the 

term she used was “dragon lady.” De Havilland seeks to enjoin 

the distribution and broadcast of the television program and to 

recover money damages.

The trial court denied FX’s special motion to strike the 

complaint. The court concluded that, because Feud tried to 

portray de Havilland as realistically as possible, the program was 

not “transformative” under Comedy III Productions1 and 

therefore not entitled to First Amendment protection. As 

appellants and numerous amici point out, this reasoning would 

render actionable all books, films, plays, and television programs 

that accurately portray real people. Indeed, the more realistic 

the portrayal, the more actionable the expressive work would be. 

The First Amendment does not permit this result. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. Feud airs and de Havilland sues

In March 2017, FX began airing its eight-part docudrama, 

Feud: Bette and Joan. The docudrama portrays the rivalry 

between actresses Joan Crawford and Bette Davis. The central 

theme of the program is that powerful men in Hollywood 

pressured and manipulated women in the industry into very 

public feuds with one another to advance the economic interests 

of those men and the institutions they headed. A secondary 

theme -- as timely now as it was in the 1960’s -- is the poor 

treatment by Hollywood of actresses as they age.

1 Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 

25 Cal.4th 387 (Comedy III).

4

 
Academy-Award-winning actress Catherine Zeta-Jones 

portrays de Havilland in the docudrama. The de Havilland role 

is a limited one, consuming fewer than 17 minutes of the

392-minute, eight-episode miniseries. The role consists 

essentially of two parts: (1) a fictitious interview in which ZetaJones -- often accompanied by Academy-Award-winning actress 

Kathy Bates playing actress Joan Blondell -- talks to an 

interviewer (a young man named “Adam”) about Hollywood, its 

treatment of women, and the Crawford/Davis rivalry; and 

(2) scenes in which Zeta-Jones interacts with Academy-Awardwinning actress Susan Sarandon playing Bette Davis. These 

scenes portray the close friendship between Davis and de 

Havilland. As played by Zeta-Jones, the de Havilland character 

is portrayed as beautiful, glamorous, self-assured, and 

considerably ahead of her time in her views on the importance of 

equality and respect for women in Hollywood. Feud was 

nominated for 18 Emmy awards.

On June 30, 2017, de Havilland filed this lawsuit. Her 

Third Amended Complaint, filed in September 2017, alleges four 

causes of action: (1) the common law privacy tort of 

misappropriation; (2) violation of Civil Code section 3344,

California’s statutory right of publicity; (3) false light invasion of 

privacy; and (4) “unjust enrichment.” De Havilland asks for 

damages for emotional distress and harm to her reputation; “past 

and future” “economic losses”; FX’s “profits gained . . . from and 

5
attributable to the unauthorized use of [her] name, photograph,2

or likeness”; punitive damages; attorney fees; and a permanent 

injunction prohibiting the “broadcast and distribution” of the 

series.3

2 There seems to be only one photograph to which de 

Havilland could be referring. At the end of the miniseries, just 

before the credits, Feud displays side-by-side photographs of the 

real people who had some involvement in the story and the actor 

who played each. These include director Robert Aldrich (played 

by Alfred Molina), Jack Warner of Warner Brothers (played by 

Stanley Tucci), Joan Crawford (played by Jessica Lange), Victor 

Buono (played by Dominic Burgess), Bette Davis’s daughter B.D. 

Merrill (played by Kiernan Shipka), and Hedda Hopper (played 

by Judy Davis), as well as Davis and de Havilland, played, as 

noted, by Sarandon and Zeta-Jones, respectively. A short blurb 

tells the viewer what became of each person. For de Havilland, 

the blurb states, “Olivia de Havilland made her screen debut in 

Max Reinhardt’s A Midsummer Night’s Dream in 1935. She 

retired from film acting in 1988. She continues to enjoy her 

retirement in Paris. On July 1, 2016, she turned 100 years old.” 

De Havilland attached a copy of the side-by-side photographs of 

her and Zeta-Jones to her complaint.

3 On July 25, 2017, de Havilland filed a motion for trial 

setting preference. De Havilland submitted a declaration stating 

she lives in Paris and is 101 years old. She also submitted a 

declaration by a Los Angeles physician stating that any person of 

that age “will not survive for any extended period of time.”

6

 
2. FX’s special motion to strike

a. FX’s motion, declarations, and exhibits

On August 29, 2017, FX filed a motion to strike the 

complaint under California’s anti-SLAPP4 law, Code of Civil 

Procedure section 425.16. FX submitted declarations from Ryan 

Murphy, a co-creator, executive producer, writer, and director of 

Feud; Michael Zam, a screenwriter who co-wrote a script called 

Best Actress on which Feud was based in part; and Timothy 

Minear, an executive producer and writer for Feud. Minear 

explained the writers on the project created “imagined 

interviews” conducted at the 1978 Academy Awards as a 

“framing device” to introduce viewers to Feud’s themes such as 

the unfair treatment of women in Hollywood. Minear stated 

Feud’s writers based the imagined interview on actual interviews 

de Havilland had given over the years. Minear also explained 

that a “docudrama” is a “dramatized retelling of history.”

FX also submitted a declaration from Stephanie Gibbons, 

its president of marketing and promotion. Gibbons stated FX 

had not used de Havilland’s photograph in any advertising or 

promotion for the miniseries. Six of 44 video advertisements 

included pictures of Zeta-Jones; none of these used de Havilland’s 

name. Gibbons explained that Zeta-Jones is a famous actress 

whom FX thought viewers would want to watch.

4 SLAPP is an acronym for strategic lawsuit against public 

participation. (Christian Research Institute v. Alnor (2007) 

148 Cal.App.4th 71, 76, fn. 1 (Christian Research).)

7

 
FX submitted the declaration of James Berkley, a research 

analyst for FX’s law firm, together with 59 exhibits. These 

included books, newspaper and magazine articles, and videos of 

de Havilland appearing as a guest on talk shows. In a number of 

the articles and video clips, de Havilland granted interviews and 

made statements about other actors, including her sister Joan 

Fontaine. In a July 2016 Associated Press interview -- on the 

occasion of her one hundredth birthday -- de Havilland said this 

about her sister: “Dragon Lady, as I eventually decided to call 

her, was a brilliant, multi-talented person, but with an 

astigmatism in her perception of people and events which often 

caused her to react in an unfair and even injurious way.”

b. De Havilland’s opposition, declarations, and exhibits

De Havilland filed an opposition on September 15, 2017. 

She asserted Feud was a “commercial production.” De Havilland

attached a declaration from Mark Roesler, the chairman of 

Celebrity Valuations. Roesler declared he had represented many 

celebrities over the years, including Richard Nixon. Roesler 

calculated the fair market value of FX’s “use” in Feud of de 

Havilland’s “rights” to be between 1.38 and 2.1 million dollars.

This works out to between approximately $84,000 and $127,000 

per minute of time that Zeta-Jones appears on screen.

De Havilland also submitted declarations from David Ladd 

and Cort Casady. Both men stated they have many years of 

experience in the entertainment business. In nearly identical 

language both Ladd and Casady declared the “standard practice” 

in the film and television industry is to obtain consent from any 

“well-known living person” before her or his “name, identity, 

character[,] or image” can be used in a film or television 

8
program.5 In addition, de Havilland submitted a declaration 

from her attorney attaching posts from Instagram and Facebook 

with photographs of Zeta-Jones as de Havilland.

c. FX’s reply

FX filed a reply on September 22, 2017. FX submitted a 

declaration from Casey LaLonde, Joan Crawford’s grandson.

LaLonde stated an actor portraying him as a child appears in 

Feud. LaLonde neither granted consent nor received any 

compensation for this portrayal. LaLonde described the 

experience of seeing an actor portraying him in the docudrama as 

“a wonderful surprise.” LaLonde also made available to Feud’s 

producers home movies of Crawford. He stated the producers did 

not pay any compensation to Crawford’s family for their portrayal 

of her. LaLonde declared that de Havilland’s attorney’s 

statement to USA Today that Feud’s producers had compensated 

Crawford’s family for the use of her identity was untrue.

d. The hearing on the motion and the trial court’s ruling

On September 29, 2017, the parties argued the motion. 

The superior court issued a 16-page written decision. The court 

denied the anti-SLAPP motion as to all four causes of action. The 

court first found the docudrama constitutes speech in a public 

forum, involving an issue of public concern. Noting the burden 

then shifts to the plaintiff to show a probability of prevailing on 

her claims, the court concluded de Havilland had sufficiently met 

5 Casady stated consent “must be obtained.” Ladd stated 

consent “should be obtained.” Ladd added that, “[i]f consent 

could not be obtained,” then the producers could use only 

“authenticated facts previously disclosed” by the person herself or 

himself.

9

 
her burden of proof. The court stated de Havilland had to show 

only that her lawsuit had minimal merit.

The trial court said de Havilland had met her burden on 

her right of publicity claims “because no compensation was given 

despite using her name and likeness.” The court, citing Ladd’s

declaration, stated, “[I]t is standard in the industry, according to 

Plaintiff, to negotiate compensation prior to the use of a person’s 

likeness.” The court said there was “nothing transformative 

about [Feud]” within the meaning of Comedy III because FX 

admitted it “wanted to make the appearance of [de Havilland] as 

real as possible.”

On de Havilland’s false light claim, the court noted de 

Havilland asserted (1) she had not given an interview at the 1978 

Academy Awards; (2) she had not referred to her sister Joan 

Fontaine as “my bitch sister”; (3) she never told a director she 

didn’t “play bitches” and he should call her sister; and (4) when 

asked where the alcohol in Frank Sinatra’s dressing room had 

gone, she never said “Frank must have drunk it all.” Rejecting 

FX’s argument that these portrayals are not defamatory, the 

court said, “[I]n considering the show as a whole, the Court finds 

[de Havilland] has sufficiently met her burden of proof in that a 

viewer of the television show, which is represented to be based on 

historical facts, may think [de Havilland] to be a gossip who uses 

vulgar terms about other individuals, including her sister.”

Citing the Casady declaration, the court stated, “For a celebrity, 

this could have a significant economic impact.”

As to actual malice (de Havilland did not dispute she is a 

public figure),6 the court concluded de Havilland had “submitted 

6 De Havilland again concedes on appeal that she is a public 

figure.

10

 
sufficient evidence that [FX] presented scenes ‘with knowledge 

that [they were] false or with reckless disregard of whether [they 

were] false or not.’ ” The court seemed unreceptive to FX’s 

argument that “false” is different from “dramatized.” Finally, the 

trial court rejected FX’s argument that de Havilland’s fourth 

cause of action for “unjust enrichment” was not a cause of action.

DISCUSSION

1. California’s anti-SLAPP statute and our standard of 

review on appeal

A special motion to strike under the anti-SLAPP statute, 

Code of Civil Procedure section 425.16, “ ‘is a procedural remedy 

to dispose of lawsuits brought to chill the valid exercise of a 

party’s constitutional right of petition or free speech. [Citation.] 

The purpose of the anti-SLAPP statute is to encourage 

participation in matters of public significance and prevent 

meritless litigation designed to chill the exercise of First 

Amendment rights. [Citation.] The Legislature has declared that 

the statute must be “construed broadly” to that end.’ ” (Hawran 

v. Hixson (2012) 209 Cal.App.4th 256, 268; see also Code Civ. 

Proc., § 425.16(a); cf. Bradbury v. Superior Court (1996) 

49 Cal.App.4th 1108, 1114, fn. 3 [an appellate court, whenever 

possible, should interpret the First Amendment and section 

425.16 in a manner “favorable to the exercise of freedom of 

speech, not its curtailment”].) This legislative directive “is 

expressed in unambiguous terms.” (Briggs v. Eden Council for 

Hope & Opportunity (1999) 19 Cal.4th 1106, 1119.) “[T]he broad 

construction expressly called for in subdivision (a) of section 

425.16 is desirable from the standpoint of judicial efficiency.” 

(Id. at pp. 1121-1122.)

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“Resolution of an anti-SLAPP motion ‘requires the court to 

engage in a two-step process.’ ” (Jarrow Formulas, Inc. v. 

LaMarche (2003) 31 Cal.4th 728, 733.) First, the defendant must 

show the conduct underlying the plaintiff’s cause of action arises 

from the defendant’s constitutional rights of free speech or 

petition in connection with a public issue. (Equilon Enterprises v.

Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the defendant 

satisfies this prong, the burden shifts to the plaintiff to prove she 

has a legally sufficient claim and to prove with admissible 

evidence a probability that she will prevail on the claim. (Wilson 

v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; see also 

HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 

204, 212 [“In opposing an anti-SLAPP motion, the plaintiff 

cannot rely on the allegations of the complaint, but must produce 

evidence that would be admissible at trial.”].) “In deciding the 

question of potential merit, the trial court considers the pleadings 

and evidentiary submissions of both the plaintiff and the 

defendant (§ 425.16, subd. (b)(2)); though the court does not 

weigh the credibility or comparative probative strength of 

competing evidence, it should grant the motion if, as a matter of 

law, the defendant’s evidence supporting the motion defeats the 

plaintiff’s attempt to establish evidentiary support for the claim.” 

(Wilson v. Parker, at p. 821; see also Jackson v. Mayweather

(2017) 10 Cal.App.5th 1240, 1251 (Jackson).) “[O]n its face the 

[anti-SLAPP] statute contemplates consideration of the 

substantive merits of the plaintiff’s complaint, as well as all 

available defenses to it, including, but not limited to, 

constitutional defenses. This broad approach is required not only 

by the language of the statute, but by the policy reasons [that] 

12
gave rise to our anti-SLAPP statute.” (Traditional Cat Assn., Inc. 

v. Gilbreath (2004) 118 Cal.App.4th 392, 398.)

To satisfy this prong-two showing, the plaintiff must 

present credible evidence that satisfies the standard of proof 

required by the substantive law of the cause of action the antiSLAPP motion challenges. Generally, a plaintiff’s claims need 

only have “ 'minimal merit’ ” to survive an anti-SLAPP motion. 

(Navellier v. Sletten (2002) 29 Cal.4th 82, 95, fn. 11.) But when 

the plaintiff is a public figure, to establish a prima facie case she 

must demonstrate by clear and convincing evidence that the 

defendant acted with “actual malice.” (Annette F. v. Sharon S.

(2004) 119 Cal.App.4th 1146, 1162, 1169-1172 [trial court should 

have granted anti-SLAPP motion where limited purpose public 

figure plaintiff “failed to show a probability of proving actual 

malice by clear and convincing evidence”]; Conroy v. Spitzer

(1999) 70 Cal.App.4th 1446, 1451, 1454 [to meet anti-SLAPP 

statute’s requirement that he show he would “probably” prevail 

on his claim, public figure plaintiff “was required to ‘show a 

likelihood that he could produce clear and convincing evidence’ ” 

that defendant made statements with actual malice]; Beilenson v. 

Superior Court (1996) 44 Cal.App.4th 944, 950 [“The clear and 

convincing standard requires that the evidence be such as to 

command the unhesitating assent of every reasonable mind. 

[Citation.] Actual malice cannot be implied and must be proven 

by direct evidence”]; see also Makaeff v. Trump University, LLC

(9th Cir. 2013) 715 F.3d 254, 271 [whether plaintiff has 

“reasonable probability of proving, by clear and convincing 

evidence, that [defendant] made her critical statements with 

actual malice” is “inherently fact-intensive question”].) “The 

requirement that a public figure plaintiff prove malice by clear 

13
and convincing evidence arises from First Amendment concerns 

that freedom of expression be provided ‘the “breathing space” 

that [it] “need[s] . . . to survive . . . .” ’ ” (Christian Research, 

supra, 148 Cal.App.4th at p. 82, quoting New York Times Co. v. 

Sullivan (1964) 376 U.S. 254, 272 [11 L.Ed. 2d 686].)

“An order denying an anti-SLAPP special motion to strike 

is appealable under [Code of Civil Procedure] sections 425.16, 

subdivision (i), and 904.1.” (Christian Research, supra,

148 Cal.App.4th at p. 79.) Our review of the trial court’s order 

denying FX’s motion “is de novo, and entails an independent 

review of the entire record.” (City of Costa Mesa v. D’Alessio

Investments, LLC (2013) 214 Cal.App.4th 358, 371; see also 

Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408 [“An appellate 

court reviews an order denying an anti-SLAPP motion from a 

clean slate”].)

2. De Havilland concedes FX met the first prong of the twostep process

The trial court found that de Havilland’s lawsuit arises 

from FX’s exercise of its free speech rights on a topic of public 

interest in a public forum. De Havilland presented no argument 

on that issue in her opposition brief. At oral argument, her 

counsel conceded FX has met the first prong of the anti-SLAPP 

analysis.

3. The First Amendment protects FX’s portrayal of de 

Havilland in a docudrama without her permission

a. We question whether a docudrama is a product or 

merchandise within the meaning of Civil Code section 3344

As noted, de Havilland alleges causes of action for violation 

of the statutory right of publicity, Civil Code section 3344, and for

the common law tort of misappropriation. Section 3344, 

14
subdivision (a) provides, in part, “Any person who knowingly uses 

another’s name, voice, signature, photograph, or likeness, in any 

manner, on or in products, merchandise, or goods, or for purposes 

of advertising or selling, or soliciting purchases of, products, 

merchandise, goods, or services, without such person’s prior 

consent, . . . shall be liable for any damages sustained by the 

person or persons injured as a result thereof.” (Italics added.) 

Misappropriation is one of the four branches of the privacy tort 

identified by Dean William Prosser. (Prosser, Privacy (1960) 

48 Cal. L.Rev. 383, 389; see generally 5 Witkin, Summary of Cal. 

Law (11th ed. 2017) Torts, § 756, p. 1043.) The Restatement 

Second of Torts adopted Prosser’s classification. (Hill v. National 

Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 24.) “California 

common law has generally followed Prosser’s classification of 

privacy interests as embodied in the Restatement.” (Ibid.) The

Restatement defines the misappropriation tort: “One who 

appropriates to his own use or benefit the name or likeness of 

another is subject to liability to the other for invasion of his 

privacy.” (Rest.2d Torts § 652C.)

De Havilland’s statutory claim raises a preliminary 

question of whether the portrayal of a real person in a television 

program (or a book, play, or film) constitutes the “use” of that 

person’s name or “likeness” “on or in” a product, merchandise, or 

good. Books, films, and television shows are “things” but are they 

“merchandise” or “products”? Many of the cases in this area 

involve products and merchandise such as T-shirts and 

lithographs (Comedy III, ante), greeting cards (Hilton v. 

Hallmark Cards (9th Cir. 2010) 599 F.3d 894), and video games 

(Davis v. Elec. Arts, Inc. (9th Cir. 2015) 775 F.3d 1172; In re 

NCAA Student-Athlete Name & Likeness (9th Cir. 2013) 724 F.3d

15
1268; Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47), 

or advertisements for products and merchandise. (See, e.g., 

Newcombe v. Adolf Coors Co. (9th Cir. 1998) 157 F.3d 686, 691-

694 [beer advertisement]; Waits v. Frito-Lay, Inc. (9th Cir. 1992) 

978 F.2d 1093 [advertisement for SalsaRio Doritos]; Midler v. 

Ford Motor Co. (9th Cir. 1988) 849 F.2d 460 [advertisement for 

Ford Lincoln Mercury]; cf. CACI No. 1804A [to establish violation 

of Civil Code section 3344, plaintiff must prove (among other 

elements) that defendant knowingly used plaintiff’s name or 

likeness “on merchandise/[or] to advertise or sell [describe what is 

being advertised or sold]” and that defendant’s use of plaintiff’s 

name or likeness “was directly connected to [defendant’s] 

commercial purpose.”].)

The United States Court of Appeals for the Ninth Circuit 

addressed this question in a recent case, Sarver v. Chartier (9th 

Cir. 2016) 813 F.3d 891 (Sarver). A United States Army sergeant 

who had served in Iraq sued the screenwriter, director, and 

producer of the motion picture The Hurt Locker. The plaintiff 

alleged “he did not consent to [the] use [of his life and experiences 

in the film] and that several scenes in the film falsely portray 

him in a way that has harmed his reputation.” (Id. at p. 896.) 

He asserted causes of action for (among other torts)

misappropriation of his likeness and violation of the right of 

publicity, false light invasion of privacy, and defamation. (Ibid.) 

The appellate court affirmed the district court’s dismissal of the 

lawsuit under our anti-SLAPP statute. The court observed “The 

Hurt Locker is not speech proposing a commercial transaction.” 

(Id. at p. 905.) The court discussed Zacchini v. Scripps-Howard 

Broadcasting Co. (1977) 433 U.S. 562 [53 L.Ed.2d 965] (Zacchini),

the only United States Supreme Court case to “review[] the 

16
constitutionality of a state’s right of publicity law.” (Sarver, at 

p. 903.) An Ohio television station broadcast 15 seconds of 

Zacchini performing his “human cannonball” act. Zacchini sued 

for violation of his right of publicity under Ohio law. The Court 

concluded the First Amendment interests in broadcasting 

Zacchini’s entire act -- rather than, for example, his name or 

picture -- was minimal. (Zacchini, at pp. 563-564, 573.) The 

Sarver court noted that, in the intervening forty years, the “Court 

has not revisited the question of when a state’s right of publicity 

law is consistent with the First Amendment.” (Sarver, at p. 904; 

see also Matthews v. Wozencraft (5th Cir. 1994) 15 F.3d 432, 439

(Matthews) [“ ‘Courts long ago recognized that a celebrity’s right 

of publicity does not preclude others from incorporating a 

person’s name, features, or biography in a literary work, motion 

picture, news or entertainment story. Only the use of an 

individual’s identity in advertising infringes on the persona.’ ”].)

We need not decide this question, however, because Feud is 

constitutionally protected in any event.

b. Assuming a docudrama is a “use” for purposes of the 

right of publicity, the First Amendment protects Feud

Assuming for argument’s sake that a television program is 

a “product, merchandise, or good” and that Zeta-Jones’s portrayal 

of de Havilland constitutes a “use” of de Havilland’s name or 

likeness within the scope of both the right of publicity statute and 

the misappropriation tort, we come to FX’s First Amendment 

defense. Nearly 40 years ago, the Chief Justice of our Supreme 

Court addressed this issue in Guglielmi v. Spelling-Goldberg 

Productions (1979) 25 Cal.3d 860 (Guglielmi). The case involved 

a television program that was a “fictionalized version” of the life 

of actor Rudolph Valentino. Valentino had died years earlier and 

17
his nephew Guglielmi sued, alleging misappropriation of 

Valentino’s right of publicity and seeking damages and injunctive 

relief. The Court affirmed the dismissal of the complaint on the 

ground that, at the time, the right of publicity was not 

descendible to heirs.

In a concurring opinion joined by three other justices, the 

Chief Justice framed the issue as whether the use of a celebrity’s 

“name and likeness in a fictional film exhibited on television 

constitutes an actionable infringement of that person’s right of 

publicity.” (Guglielmi, supra, 25 Cal.3d at p. 862.) She 

concluded, “It is clear that [Guglielmi’s] action cannot be 

maintained.” (Ibid.) The Chief Justice noted Guglielmi alleged 

the television production company “knew that the film did not 

truthfully portray Valentino’s life.” (Ibid.) She summarized 

Guglielmi’s contentions: the film was not entitled to 

constitutional protection because the producers “incorporated 

Valentino’s name and likeness in: (1) a work of fiction, (2) for 

financial gain, (3) knowing that such film falsely portrayed 

Valentino’s life.” (Id. at p. 865.) The Chief Justice noted

Guglielmi’s argument “reveal[ed] a fundamental misconception of 

the nature of the constitutional guarantees of free expression,” 

adding, “Our courts have often observed that entertainment is 

entitled to the same constitutional protection as the exposition of 

ideas.” (Id. at pp. 865-867.) “Thus,” the justice said, “no 

distinction may be drawn in this context between fictional and 

factual accounts of Valentino’s life.” (Id. at p. 868.) “[T]ruthful 

and fictional accounts” “have equal constitutional stature.” 

(Id. at p. 871.) The Chief Justice “readily dismissed” Guglielmi’s 

next argument, stating, “The First Amendment is not limited to 

those who publish without charge.” (Id. at p. 868.)

18
The Chief Justice wrote, “Valentino was a Hollywood star. 

His life and career are part of the cultural history of an era. . . . 

His lingering persona is an apt topic for poetry or song, biography 

or fiction. Whether [the producers’] work constitutes a serious 

appraisal of Valentino’s stature or mere fantasy is a judgment 

left to the reader or viewer, not the courts.” (Guglielmi, supra, 

25 Cal.3d at pp. 869-870.)

In the nearly four decades since, our Supreme Court and 

courts of appeal have continued to cite Guglielmi with approval. 

(See, e.g., Comedy III, supra, 25 Cal.4th at pp. 396-398, 401-402, 

406; Winter v. DC Comics (2003) 30 Cal.4th 881, 887-888, 891 

(Winter); Tamkin v. CBS Broadcasting, Inc. (2011) 

193 Cal.App.4th 133, 145 (Tamkin); Dyer v. Childress (2007) 

147 Cal.App.4th 1273, 1280; Polydoros v. Twentieth Century Fox 

Film Corp. (1997) 67 Cal.App.4th 318, 324-325 (Polydoros).) 

Federal courts applying California law have as well. (See, e.g., 

Sarver, supra, 813 F.3d at p. 905, fn. 9 [noting Guglielmi postdated Zacchini and the four justices “cautioned that the 

defendants’ fictionalized portrayal of Valentino’s life was entitled 

to greater First Amendment protection than the conduct in 

Zacchini”].)

Feud is as constitutionally protected as was the film in 

Sarver, The Hurt Locker. As with that expressive work, Feud “is 

speech that is fully protected by the First Amendment, which 

safeguards the storytellers and artists who take the raw 

materials of life -- including the stories of real individuals, 

ordinary or extraordinary -- and transform them into art, be it 

articles, books, movies, or plays.” (Sarver, supra, 813 F.3d at 

p. 905; see also Dora v. Frontline Video, Inc. (1993) 

15 Cal.App.4th 536, 542 [producer of documentary about surfers 

19
in Malibu was entitled to judgment on surfer’s claims for 

violation of common law and statutory right of publicity; 

“[w]hether [Dora] is considered a celebrity or not, whether he is 

seeking damages for injury to his feelings or for the commercial 

value of his name and likeness, . . . the public interest in the 

subject matter of the program gives rise to a constitutional 

protection against liability”]; cf. Polydoros, supra, 67 Cal.App.4th 

at pp. 322-325 [“Guglielmi unequivocally prevent[ed] [plaintiff] 

from proceeding on his claim for commercial appropriation of 

identity” against writer and director of fictional film with 

character that resembled plaintiff as a child; “[t]o succeed in his 

claims, [plaintiff] must establish a direct connection between the 

use of his name or likeness and a commercial purpose”]; The 

Institute v. Target Corp. (11th Cir. 2016) 812 F.3d 824, 826 (Rosa 

& Raymond Parks) [books, movie, and plaque depicting civil 

rights pioneer Rosa Parks were protected under Michigan’s 

constitution]; Seale v. Gramercy Pictures (E.D. Pa. 1996) 

949 F.Supp. 331 (Seale) [First Amendment protected filmmakers’ 

use of name and likeness of Black Panther Party’s co-founder; 

“the creation, production, and promotion of a motion picture and 

history book [that] integrate[d] fictitious people and events with 

the historical people and events surrounding the emergence of 

the Black Panther Party in the late 1960’s” constituted First 

Amendment expression and was not for a commercial purpose];

Matthews, supra, 15 F.3d at p. 440 [First Amendment protected 

book and movie about narcotics officers from misappropriation 

and false light claims; “[i]t is immaterial whether [the book] ‘is 

viewed as an historical or a fictional work,’ [citation], so long as it 

20
is not ‘simply a disguised commercial advertisement for the sale 

of goods or services’ ”].)7

That Feud’s creators did not purchase or otherwise procure 

de Havilland’s “rights” to her name or likeness does not change 

this analysis. Producers of films and television programs may 

enter into agreements with individuals portrayed in those works 

for a variety of reasons, including access to the person’s 

recollections or “story” the producers would not otherwise have, 

or a desire to avoid litigation for a reasonable fee. But the First 

Amendment simply does not require such acquisition 

agreements. (Polydoros, supra, 67 Cal.App.4th at p. 326 [“[t]he 

industry custom of obtaining ‘clearance’ establishes nothing, 

other than the unfortunate reality that many filmmakers may 

deem it wise to pay a small sum up front for a written consent to 

avoid later having to spend a small fortune to defend 

unmeritorious lawsuits such as this one”]; cf. Rosa & Raymond 

7 De Havilland relies on Eastwood v. Superior Court (1983) 

149 Cal.App.3d 409. That case -- which arose from an unusual 

set of facts -- does not assist our analysis. A tabloid published an 

article about the supposed involvement of famous actor Clint 

Eastwood in a “love triangle.” Eastwood alleged the article was 

entirely false. (Id. at p. 414.) The court of appeal, citing 

Zacchini, held that Eastwood could proceed with his right of 

publicity claims. (Id. at p. 423.) Here, by contrast, the expressive 

work at issue is an eight-hour docudrama of which the de 

Havilland character is but a small part. Moreover, as discussed 

below, the scenes and lines of which de Havilland complains are 

permissible literary license and, in any event, not highly 

offensive to a reasonable person. Unlike Eastwood, Feud’s 

creators did not make out of whole cloth an entirely false “article” 

for economic gain.

21

 
Parks, supra, 812 F.3d at p. 832 [privilege based on state 

constitution’s free speech guarantee was not “contingent on 

paying a fee”].) The creators of The People v. O.J. Simpson: 

American Crime Story can portray trial judge Lance Ito without 

acquiring his rights. Fruitvale Station’s writer and director Ryan 

Coogler can portray Bay Area Rapid Transit officer Johannes 

Mehserle without acquiring his rights. HBO can portray Sarah 

Palin in Game Change without acquiring her rights. There are 

myriad additional examples.

De Havilland also contends the fictitious interview “is 

structured as an endorsement of [Feud].” The miniseries itself 

does not support this contention. Nothing Zeta-Jones says or 

does as de Havilland in the docudrama suggests -- much less 

constitutes -- an “endorsement” of the work by de Havilland. 

De Havilland’s argument seems to be that, whenever a filmmaker 

includes a character based on a real person, that inclusion 

implies an “endorsement” of the film or program by that real 

person. We have found no case authority to support this novel 

argument.

Nor does the use of de Havilland’s name -- along with 

photographs of Zeta-Jones -- in social media promotion for the 

miniseries support de Havilland’s claims for violation of her right 

of publicity. Constitutional protection for an expressive work 

such as Feud “ ‘extends to the truthful use of a public figure’s 

name and likeness in advertising [that] is merely an adjunct of 

the protected publication and promotes only the protected 

publication.’ ” (Montana v. San Jose Mercury News, Inc. (1995) 

34 Cal.App.4th 790, 797 [First Amendment protected posters that 

reproduced newspaper stories and photographs of famous 

quarterback “for two distinct reasons: first, because the posters 

22
themselves report newsworthy items of public interest, and 

second, because a newspaper has a constitutional right to 

promote itself by reproducing its originally protected articles or 

photographs”].) “[U]se of a person’s name and likeness to 

advertise a novel, play, or motion picture concerning that 

individual is not actionable as an infringement of the right of 

publicity.” (Seale, supra, 949 F.Supp. at p. 336; see also 

Guglielmi, supra, 25 Cal.3d at pp. 872-873.)

c. In any event, Feud’s portrayal of de Havilland is 

transformative

The parties spend considerable time discussing the 

“transformative” test set forth in Comedy III. There, a company 

that owns the rights under Civil Code section 9908 to The Three 

Stooges (all three are deceased) sued an artist who had made a 

charcoal drawing of The Three Stooges, put it on T-shirts and 

lithographs, and sold those items. The Supreme Court noted the 

statute imposes liability on a person who uses a deceased 

personality’s name or likeness “either (1) ‘on or in’ a product, or 

(2) in ‘advertising or selling’ a product.” (Comedy III, supra, 

25 Cal.4th at p. 395.) The T-shirts and lithographs were, the 

Court said, “tangible personal property,” “consisting of fabric and 

8 Civil Code section 990 has since been renumbered as Civil 

Code section 3344.1. Enacted in 1984, the statute essentially 

provides a descendible right of publicity. In language similar to 

section 3344 governing the rights of living persons, section 3344.1 

gives a “deceased personality’s” heirs and their assignees a cause 

of action against someone who uses the deceased person’s “name, 

voice, signature, photograph, or likeness . . . on or in products, 

merchandise, or goods, or for purposes of advertising or selling, or 

soliciting purchases of, products, merchandise, goods, or services, 

without prior consent.”

23

 
ink” and “paper and ink.” (Ibid.) The Court found the artist’s 

drawing was an “expressive work[] and not an advertisement for 

or endorsement of a product.” (Id. at p. 396.) But, the Court 

continued, “[A] celebrity’s heirs and assigns have a legitimate 

protectable interest in exploiting the value to be obtained from 

merchandising the celebrity’s image.” (Id. at p. 400, italics 

added.)

To resolve this “difficult issue” (Comedy III, supra, 

25 Cal.4th at p. 396), the Court borrowed a concept from 

copyright law: “ ‘whether and to what extent the new work [the

product bearing the deceased personality’s likeness] is 

“transformative.” ’ ” (Id. at p. 404.) The Court held: “When 

artistic expression takes the form of a literal depiction or 

imitation of a celebrity for commercial gain, directly trespassing 

on the right of publicity without adding significant expression 

beyond that trespass, the state law interest in protecting the 

fruits of artistic labor outweighs the expressive interests of the 

imitative artist.” (Id. at p. 405.) The Court continued, “Another 

way of stating the inquiry is whether the celebrity likeness is one 

of the ‘raw materials’ from which an original work is synthesized, 

or whether the depiction or imitation of the celebrity is the very 

sum and substance of the work in question.” (Id. at p. 406.) The 

Court identified a “useful . . . subsidiary inquiry:” “does the 

marketability and economic value of the challenged work derive 

primarily from the fame of the celebrity depicted? If this 

question is answered in the negative, then there would generally 

be no actionable right of publicity. When the value of the work 

comes principally from some source other than the fame of the 

celebrity -- from the creativity, skill, and reputation of the 

artist -- it may be presumed that sufficient transformative 

24
elements are present to warrant First Amendment protection.” 

(Id. at p. 407.) Applying its “transformative” test to the sketch 

artist’s T-shirts and lithographs, the Court concluded the 

charcoal drawing on the shirts and prints was a “literal, 

conventional depiction[] of The Three Stooges” and therefore not 

constitutionally protected. (Id. at p. 409.)

Comedy III’s “transformative” test makes sense when 

applied to products and merchandise -- “tangible personal 

property,” in the Supreme Court’s words. Lower courts have 

struggled mightily, however, to figure out how to apply it to 

expressive works such as films, plays, and television programs. 9 

The trial court’s analysis here is a good example.10 The court 

wrote, “[H]ere, because [FX] admit[s] that [it] wanted to make the 

appearance of [de Havilland] as real as possible . . . , there is 

nothing transformative about the docudrama. Moreover, even if 

[FX] imagined conversations for the sake of being creative, such 

does not make the show transformative.”

We disagree. The fictitious, “imagined” interview in which 

Zeta-Jones talks about Hollywood’s treatment of women and the 

9 Cf. Sarver, supra, 813 F.3d at p. 904, fn. 6 [unnecessary in 

Hurt Locker case to reach affirmative defense of “transformative 

use”].

10 Amici, 22 constitutional law and intellectual property law 

professors, note they “have serious reservations about the 

[Comedy III] test [as the appropriate test for deciding the federal 

question of whether and when the First Amendment protects 

against right of publicity claims] -- highlighted by the trial court’s 

struggle to understand what was meant by a transformative use, 

and its . . . reading of that test to devalue realistic uses in works 

of historical fiction and biography.”

25

 
Crawford/Davis rivalry is a far cry from T-shirts depicting a

representational, pedestrian, uncreative drawing of The Three 

Stooges. The de Havilland role, performed by Zeta-Jones, 

constitutes about 4.2 percent of Feud. The docudrama tells the 

story, in nearly eight hours, of the competition between 

Hollywood’s leading ladies of the day, Bette Davis and Joan 

Crawford, for film roles, attention, awards, and acclaim. The 

miniseries tells many stories within the story as well: Jack 

Warner’s demeaning and dismissive treatment of director Robert 

Aldrich; Crawford’s and Davis’s struggles with their personal 

relationships: husbands, partners, and children; the obstacles 

faced by capable women like Aldrich’s assistant Pauline Jameson

who want to direct motion pictures; and the refusal of powerful 

men in the entertainment business to take women seriously, even 

when their movies make money.

In the words of the Comedy III Court, Zeta-Jones’s 

“celebrity likeness [of de Havilland] is one of the ‘raw materials 

from which [the] original work [Feud] is synthesized.” (Comedy 

III, supra, 25 Cal.4th at p. 406.) Applying Comedy III’s “useful 

subsidiary inquiry” here, we conclude as a matter of law that 

Feud’s “marketability and economic value” does not “derive

primarily from [de Havilland’s] fame” but rather “comes 

principally from . . . the creativity, skill, and reputation” of Feud’s 

creators and actors. Ryan Murphy is a successful screenwriter,

director, and producer who counts among his credits the 

television series Glee and the Emmy-award-winning miniseries

The People v. O.J. Simpson: American Crime Story. 

Accomplished writers contributed to the script. Highly-regarded

and award-winning actors including Susan Sarandon, Jessica 

Lange, Catherine Zeta-Jones, Stanley Tucci, Alfred Molina, Judy 

26
Davis, and Kathy Bates performed in Feud. In short, Feud

constitutes “significant expression” -- a story of two Hollywood 

legends -- of which the de Havilland character is but a small part. 

While viewers may have “tuned in” to see these actors and watch 

this Hollywood tale, there is no evidence that de Havilland as a 

character was a significant draw. (Cf. Johnson v. Harcourt, 

Brace, Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 895 [use in 

textbook of article about janitor who found and returned large 

sum of money was not actionable misappropriation; article was 

neither “a primary reason for the textbook” “nor was it a 

substantial factor in the students’ purchases of the book”].)

4. De Havilland has not carried her burden of proving 

with admissible evidence that she will probably prevail on 

her false light claim

a. The allegations of de Havilland’s complaint

In her third cause of action, de Havilland alleges false light 

invasion of privacy. Though not entirely clear,11 the complaint

11 De Havilland’s complaint blends the allegations concerning 

her right of publicity claims with those concerning her false light 

claim. For example, de Havilland alleges the “fake interview” 

“put[] false words [in her] mouth,” “misappropriated [her] name, 

likeness[,] and identity without her permission and used them 

falsely in order to exploit their own commercial interests,” and 

“create[d] the public impression that she was a hypocrite, selling 

gossip in order to promote herself at the Academy Awards.” In 

her third cause of action for false light, de Havilland alleges that 

she “benefits financially from the authorized use of her own 

name, likeness, and identity” and that FX’s “misappropriation 

caused” her harm, and she prays for a permanent injunction 

restraining FX “from continuing to infringe [her] right of 

publicity.” To assist our analysis, we separate de Havilland’s 

legal theories and address each one separately.

27

 
seems to ground this claim in four scenes or lines in Feud: (1) a 

fictionalized interview at the 1978 Academy Awards; (2) a 

reference by the de Havilland character to her “bitch sister” in a 

private conversation with the Bette Davis character; (3) a remark 

to the Aldrich character that she “do[esn’t] do bitches” and he 

should “call [her] sister” about a film role; and (4) a response to 

the Davis character’s question (“where’s the booze?”) when the 

two are alone in Frank Sinatra’s dressing room that “Frank 

must’ve drunk it all.”

b. False light invasion of privacy and de Havilland’s 

required showing

“ ‘False light is a species of invasion of privacy, based on 

publicity that places a plaintiff before the public in a false light 

that would be highly offensive to a reasonable person, and where 

the defendant knew or acted in reckless disregard as to the 

falsity of the publicized matter and the false light in which the 

plaintiff would be placed.’ ” (Jackson, supra, 10 Cal.App.5th at 

p. 1264.) “ ‘A “false light” claim, like libel, exposes a person to 

hatred, contempt, ridicule, or obloquy and assumes the audience 

will recognize it as such.’ ” (Brodeur v. Atlas Entertainment, Inc.

(2016) 248 Cal.App.4th 665, 678 (Brodeur).) “In order to be 

actionable, the false light in which the plaintiff is placed must be 

highly offensive to a reasonable person.” (Fellows v. National 

Enquirer, Inc. (1986) 42 Cal.3d 234, 238 (Fellows), citing Rest.2d 

Torts § 652E, p. 394.) “ ‘A “false light” cause of action is in 

substance equivalent to a libel claim, and should meet the same 

requirements of the libel claim, including proof of malice.’ ” 

(Brodeur, at p. 678, quoting Aisenson v. American Broadcasting 

Co. (1990) 220 Cal.App.3d 146,161 (Aisenson).)

28
To defeat FX’s anti-SLAPP motion on her false light claim,

de Havilland, as a public figure, must demonstrate a reasonable 

probability she can prove FX broadcast statements that are

(1) assertions of fact, (2) actually false or create a false 

impression about her, (3) highly offensive to a reasonable person 

or defamatory, and (4) made with actual malice. (Brodeur, supra, 

248 Cal.App.4th at p. 678; see also Dodds v. American 

Broadcasting Co. (9th Cir. 1998) 145 F.3d 1053 (Dodds); 

cf. Fellows, supra, 42 Cal.3d at p. 239 [“Although it is not 

necessary that the plaintiff be defamed, publicity placing one in a 

highly offensive false light will in most cases be defamatory as 

well”].) We decide as a matter of law whether a reasonable 

viewer would interpret Feud as conveying (a) statements of fact 

that are (b) defamatory or highly offensive to a reasonable person 

and (c) actually false or that convey a false impression of de 

Havilland. (Couch v. San Juan Unified School Dist. (1995) 

33 Cal.App.4th 1491, 1497, 1500-1501 (Couch) [“ ‘the proper focus 

of judicial inquiry in [defamation and false light cases] is simply 

whether the communication in question could be reasonably 

understood in a defamatory sense by those who received it’ ”; 

“[t]his question must be resolved by considering whether the 

reasonable or ‘average’ reader would so interpret the material”]; 

Moyer v. Amador Valley J. Union High School Dist. (1990) 

225 Cal.App.3d 720, 724; see also Ollman v. Evans (D.C. Cir. 

1984) 750 F.2d 970, 978 [questions as to privileges derived from 

the First Amendment are to be decided as matters of law].) “The 

Supreme Court and other courts have emphasized that one must 

analyze a statement in its broad context to determine whether it 

implies the assertion of an objective fact.” (Partington v. Bugliosi

(9th Cir. 1995) 56 F.3d 1147, 1153 (Partington).)

29
Accordingly, de Havilland must offer admissible evidence 

that the average, reasonable viewer of Feud, watching the scenes 

in their original context, would have understood them to convey 

statements of fact that she is “a hypocrite, selling gossip” and a 

person who “speak[s] in crude and vulgar terms about others.” 

(Couch, supra, 33 Cal.App.4th at p. 1501.) She also must 

demonstrate that these scenes and lines in Feud “would be highly 

offensive to a reasonable person,” (Sarver, supra, 813 F.3d 891 at 

p. 907) a person “of ordinary sensibilities.” (Aisenson, supra,

220 Cal.App.3d at p. 161.) In light of the actual docudrama itself

-- which we have viewed in its entirety -- de Havilland cannot 

meet her burden.

c. The fictitious interview and the light-hearted reference to 

Frank Sinatra’s drinking are neither reasonably susceptible to a 

defamatory meaning nor highly offensive to a reasonable person

First, we question whether a reasonable viewer would 

interpret Feud -- a docudrama -- as entirely factual. Viewers are 

generally familiar with dramatized, fact-based movies and 

miniseries in which scenes, conversations, and even characters 

are fictionalized and imagined. (See Masson v. New Yorker 

Magazine, Inc. (1991) 501 U.S. 496, 512-513 [111 S.Ct. 2419, 

115 L.Ed.2d 447] (Masson) [“[A]n acknowledgement that the 

work is so-called docudrama or historical fiction . . . might 

indicate that the quotations should not be interpreted as the 

actual statements of the speaker to whom they are attributed”]; 

Partington, supra, 56 F.3d at pp. 1154-1155 [“the general tenor of 

the docudrama also tends to negate the impression that the 

statements involved represented a false assertion of objective 

fact”; docudramas “often rely heavily upon dramatic 

interpretations of events and dialogue filled with rhetorical 

30
flourishes”; most viewers of docudramas “are aware by now that 

parts of such programs are more fiction than fact”].)

In any event, assuming for argument’s sake that the 

average, reasonable viewer would see the scenes in question as

literal statements of actual fact, de Havilland’s false light claim 

fails nevertheless because Feud’s depiction of her is not 

defamatory nor would it “highly offend” a reasonable person. 

Granting an interview at the Academy Awards is not conduct

that would subject a person to hatred, contempt, ridicule, or 

obloquy. (Cf. Jackson, supra, 10 Cal.App.5th at pp. 1264-1265 

[famous boxer’s social media postings that he broke up with his 

girlfriend because she had an abortion “did not expose [girlfriend] 

to ‘hatred, contempt, ridicule, or obloquy’ ”].) Feud’s writers 

explained in their declarations that they employed the fictitious 

interview as a “framing device.” In the interview, Zeta-Jones as 

de Havilland introduces the theme of powerful men misusing 

women in Hollywood. She says she was “furious” when she 

learned how Crawford and Davis had been pitted against one 

another. Feud’s producers wove this theme throughout the 

miniseries, culminating in the title of the final episode: “You 

Mean All This Time We Could Have Been Friends?” From time 

to time in the docudrama -- in brief segments12 -- Zeta-Jones acts 

as a guide for the viewer through the tale, a Beatrice to the 

viewer’s Dante.13

12 The “interview” segments consume fewer than seven 

minutes of the 392-minute miniseries, about 1.8 percent of the 

total work.

13 Aligheri, The Divine Comedy (1320).

31

 
Zeta-Jones plays de Havilland as a wise, witty, sometimes 

playful woman. That wit is the same as that displayed by the 

real de Havilland when she appeared in November 1973 on Merv 

Griffin’s talk show. When Griffin asked de Havilland whether 

the relationship between a talented director and a talented 

actress was like that of husband and wife, de Havilland 

responded, “No. It’s like lovers. It’s the next best thing to sex.” 

(On the talk show, de Havilland also told Griffin that when she 

and Bette Davis were both at Warner Brothers Davis “got all the 

interesting parts” and that Davis deserved them.) De Havilland’s 

wit and playfulness also are evident in her book Every 

Frenchman Has One, published in 1961 and reissued in 2016 

with an added “Q and A” with de Havilland. De Havilland 

includes an entire chapter on the habit of French men of

urinating by the side of the road, in public. Taken in its entirety 

and in context, Zeta-Jones’s portrayal of de Havilland is 

overwhelmingly positive. Indeed, with possible exception of 

Aldrich’s assistant, aspiring director Pauline Jameson (played by 

Alison Wright), Feud’s portrayal of de Havilland is the most 

favorable of any character in the docudrama. The work itself 

belies de Havilland’s contention that Zeta-Jones portrays de 

Havilland as a “vulgar gossip” and “hypocrite.”

Nor is Zeta-Jones’s light-hearted, offhand remark as de 

Havilland to her good friend Bette Davis while they are alone in 

Sinatra’s dressing room that he must have drunk the liquor 

defamatory or highly offensive to a reasonable person. FX 

submitted evidence in support of its motion that Sinatra’s 

fondness for alcohol was well known, and Zeta-Jones’s comment 

to Sarandon would not subject de Havilland to hatred, contempt, 

ridicule, or obloquy. (Jackson, supra, 10 Cal.App.5th at 

32
pp. 1264-1265; see also Sarver, supra, 813 F.3d at pp. 906-907 [“a 

reasonable viewer of the film would be left with the conclusion 

that the character [Sarver says is him] was a heroic figure, albeit 

one struggling with certain internal conflicts”; “even if the film’s 

portrayal of Sarver were somehow false, such depiction certainly 

would not ‘highly offend’ a reasonable person”].)

d. The “bitch” remarks -- when de Havilland’s actual words 

were “dragon lady” -- are not highly offensive to a reasonable 

person and are, in addition, substantially truthful 

characterizations of her actual words

“ ‘California law permits the defense of substantial truth,’ 

and thus a defendant is not liable ‘ “if the substance of the charge 

be proved true . . . .” ’ ‘Put another way, the statement is not 

considered false unless it “would have a different effect on the 

mind of the reader from that which the . . . truth would have 

produced.” ’ ” (Carver v. Bonds (2005) 135 Cal.App.4th 328, 

344-345, quoting Masson, supra, 501 U.S. at pp. 516-517; see also 

Jackson, supra, 10 Cal.App.5th at p. 1262; Gilbert v. Sykes (2007) 

147 Cal.App.4th 13, 28 [“ ‘ “it is sufficient if the substance, the 

gist, the sting of the libelous charge be justified” ’ ”].)

In Feud, Zeta-Jones uses the word “bitch” twice. In the 

fifth episode, Sarandon, as Davis, calls Zeta-Jones, as de 

Havilland, who is living in Paris. The two close friends have a 

private telephone conversation. Sarandon complains that 

Crawford “sets [her] off,” and then refers to de Havilland’s wellknown estrangement from her sister Joan Fontaine. Zeta-Jones

tells Sarandon her “bitch sister” has started telling the press that 

she broke Fontaine’s collarbone when they were children. The 

second use of the word comes in the seventh episode when 

Sarandon and Alfred Molina, playing Robert Aldrich, call 

33
de Havilland in Paris to ask her to replace Crawford as cousin 

Miriam in Hush . . . Hush, Sweet Charlotte. Molina tells ZetaJones that the role is not a victim but a “villainess.” Zeta-Jones 

responds, “Oh, no. I don’t do bitches. They make me so 

unhappy.” She then adds, “You should call my sister.”14

In its motion to strike, FX submitted declarations from 

Ryan Murphy and Timothy Minear, who both wrote parts of 

Feud. Both men were familiar with the well-publicized life-long 

animosity between de Havilland and her sister Joan Fontaine.

Murphy wrote the scene in which Zeta-Jones uses the words “my 

bitch sister” on the telephone with Sarandon. Ryan declared he 

used the word “bitch” “because, in [his] mind, the terms dragon 

lady and bitch generally have the same meaning, but ‘bitch’

would be more recognizable to the audience than ‘Dragon Lady.’ ” 

Similarly, Minear declared Feud’s writers “thought ‘bitch’ was 

more mainstream and would be better understood by the modern 

audiences than ‘Dragon Lady.’ ”

Had Feud’s creators had Zeta-Jones refer to Fontaine as 

“my dragon lady sister,” the “effect on the mind of the reader” 

would not have been appreciably different. Nor would a line by 

the de Havilland character, “Oh, no. I don’t do dragon ladies. 

They make me so unhappy. You should call my sister.”15 “[W]e 

decline ‘ “to dissect the creative process.” ’ ” (Brodeur, supra, 

14 De Havilland eventually accepted the role of cousin Miriam 

in Hush . . . Hush.

15 Feud writer Minear notes the first part of de Havilland’s 

telephone conversation with Aldrich was reported in Shaun 

Considine’s book, Bette & Joan: The Divine Feud, first published 

in 1989 and reissued twice since.

34

 
248 Cal.App.4th at p. 677, quoting Tamkin, supra,

193 Cal.App.4th at p. 144.) “ ‘ “We must not permit juries to 

dissect the creative process in order to determine what was 

necessary to achieve the final product and what was not, and to 

impose liability . . . for that portion deemed unnecessary. 

Creativity is, by its nature, creative.” ’ ” (Brodeur at p. 675, 

quoting Tamkin, supra, 193 Cal.App.4th at pp. 144-145.)

e. De Havilland has not demonstrated she can prove by 

clear and convincing evidence that Feud’s creators acted with 

actual malice

De Havilland does not dispute that she is a public figure. 

Her attorneys describe her as “a living legend” and “an 

internationally-known celebrity.” Accordingly, the Constitution 

requires de Havilland to prove by clear and convincing evidence 

that FX “knew the [docudrama] would create a false impression 

about [her] or acted with reckless disregard for the truth.” (CACI 

No. 1802.)

When the expressive work at issue is fiction, or a 

combination of fact and fiction, the “actual malice” analysis takes 

on a further wrinkle. De Havilland argues that, because she did 

not grant an interview at the 1978 Academy Awards or make the 

“bitch sister” or “Sinatra drank the alcohol” remarks to Bette 

Davis, Feud’s creators acted with actual malice. But fiction is by 

definition untrue. It is imagined, made-up. Put more starkly, it 

is false. Publishing a fictitious work about a real person cannot 

mean the author, by virtue of writing fiction, has acted with 

actual malice.

Recognizing this, in cases where the claimed highly 

offensive or defamatory aspect of the portrayal is implied, courts 

have required plaintiffs to show that the defendant “ ‘intended to 

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convey the defamatory impression.’ ” (Dodds, supra, 145 F.3d at 

pp. 1063-1064.) De Havilland must demonstrate “that [FX] 

either deliberately cast [her] statements in an equivocal fashion 

in the hope of insinuating a defamatory import to the reader, or 

that [it] knew or acted in reckless disregard of whether [its] 

words would be interpreted by the average reader as defamatory 

statements of fact.” (Good Government Group of Seal Beach, Inc. 

v. Superior Court (1978) 22 Cal.3d 672, 684 (Good Government 

Group).) Moreover, because actual malice is a “deliberately 

subjective” test, liability cannot be imposed for an implication 

that merely “ ‘should have been foreseen.’ ” (Newton v. National 

Broadcasting Co., Inc. (9th Cir. 1990) 930 F.2d 662, 680.)

As discussed above, we conclude Zeta-Jones’s portrayal of 

de Havilland in Feud is not highly offensive to a reasonable 

person as a matter of law. Even if it were, however, de Havilland 

has not demonstrated that she can prove actual malice by clear 

and convincing evidence. In his sworn declaration, Murphy

stated he intended Zeta-Jones’s portrayal of de Havilland to be 

that of “a wise, respectful friend and counselor to Bette Davis, 

and a Hollywood icon with a unique perspective on the past.”

5. De Havilland’s cause of action for unjust enrichment

cannot proceed

De Havilland’s fourth cause of action, entitled “Unjust 

Enrichment,” alleges FX has “received unjust financial and 

economic benefits at [her] expense,” including “the value of the 

use of [her] name, image[,] and identity for [FX’s] commercial 

purposes.” De Havilland asks for FX’s “gross revenues” and a 

constructive trust.

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“Unjust enrichment is not a cause of action.” It is “just a 

restitution claim.” (Hill v. Roll Internat. Corp. (2011)

195 Cal.App.4th 1295, 1307.) Because de Havilland’s right of 

publicity and false light claims fail, her unjust enrichment claim 

fails as well. “There being no actionable wrong, there is no basis 

for the relief.” (Ibid.)

CONCLUSION

The trial court’s ruling leaves authors, filmmakers, 

playwrights, and television producers in a Catch-22.16 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. “[T]he right of publicity 

cannot, consistent with the First Amendment, be a right to 

control the celebrity’s image by censoring disagreeable 

portrayals.” (Comedy III, supra, 25 Cal.4th at p. 403.) FX’s 

evidence here -- especially the docudrama itself -- establishes as a 

matter of law that de Havilland cannot prevail. (Hall v. Time 

Warner, Inc. (2007) 153 Cal.App.4th 1337, 1346.) “ ‘[B]ecause 

unnecessarily protracted litigation would have a chilling effect

upon the exercise of First Amendment rights, speedy resolution of 

cases involving free speech is desirable.’ ” (Winter, supra, 

30 Cal.4th at p. 891, quoting Good Government Group, supra,

22 Cal.3d at p. 685.)

16 Heller, Catch-22 (1961).

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DISPOSITION

The order denying the motion to strike is reversed. The 

trial court is directed to enter a new and different order granting 

the motion and awarding defendants their attorney fees and 

costs. (Code Civ. Proc., § 425.16, subd. (c).) Defendants shall 

recover their costs on appeal.

CERTIFIED FOR PUBLICATION

EGERTON, J.

We concur:

EDMON, P. J.

DHANIDINA, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.

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