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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Hollywood legend, Olivia

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Speaker 1: to Haveln took on the studio system in three at

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Speaker 1: the age of twenty seven, in a landmark case that

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Speaker 1: established the De havel In Law. At the age of

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Speaker 1: one and two, to Haveln took on the genre of

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Speaker 1: docu dramas, suing FX for its portrayal of her in

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Speaker 1: a mini series, but she didn't fare so well this time.

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Speaker 1: That case ended at the Supreme Court. There was never

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Speaker 1: a rivalry life theirs. For over half a century. They

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Speaker 1: hated each other unweally loved before to Havelin was played

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Speaker 1: by Catherine Zeta Jones and the mini series Feud Betty

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Speaker 1: and Joan, and she claimed it made her seem like

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Speaker 1: a vulgar gossip and a hypocrite, joining me as intellectual

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Speaker 1: property attorney Terence Ross, a partner at Captain Nugent and

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Speaker 1: Rosenman Terry, explained to Havevilen's legal claims in this lawsuit.

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Speaker 1: So June, she made three claims. She claimed that there

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Speaker 1: was an invasion of privacy going on taking certain of

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Speaker 1: her personal moments. She claimed that the docu drama portrayed

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Speaker 1: her in a false light as a vulgar sort of

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Speaker 1: unpleasant person. And finally, she filed a claim under California

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Speaker 1: statute protecting rights of publicities for celebrities, essentially saying um

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Speaker 1: that they were capitalizing on her celebrity appeal on her

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Speaker 1: her name as a movie star. So the Supreme Court

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Speaker 1: turned away her appeal on Monday without any comments. So

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Speaker 1: that leaves in place the decision by the California courts.

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Speaker 1: What did those courts decide? Why did they dismiss her lawsuit? Well,

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Speaker 1: the trial court initially accepted the lawsuit and refused to

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Speaker 1: grant a motion to dismiss that was filed by FX

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Speaker 1: Network and the other defendants, But it went up on

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Speaker 1: appeal rather quickly to an intermediate California Belt Court, which

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Speaker 1: reversed the lower court and throughout the lawsuit and its totality. Fundamentally,

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Speaker 1: the court said that the First Amendment protects these types

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Speaker 1: of docu dramas as long as they are in some

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Speaker 1: way transformative. In other words, it can be based on

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Speaker 1: the actual facts that took place historically. But if there's

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Speaker 1: enough fictional elements at it, and then the First Amendment

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Speaker 1: protection for expressive works comes into play and these sorts

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Speaker 1: of lawsuits will be dismissed. A key issue in the

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Speaker 1: appeals court panel in March was the use of an

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Speaker 1: obscenity in the mini series by to have Lyn's character

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Speaker 1: about her sister, actress Joan Fontaine, and to have Len's

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Speaker 1: lawyer argued that no record existed of to Havelen ever

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Speaker 1: you saying that word, much less to identify her sister.

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Speaker 1: So why was that ignore didn't that portray her in

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Speaker 1: a in a false light? Well, the defendants Effects Networks

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Speaker 1: and the other defense essentially admitted that, but they did

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Speaker 1: produce an interview that had been recorded with Mr Haveland

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Speaker 1: in which she referred to her sister as a dragon lady.

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Speaker 1: And what the court said is that in the minds

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Speaker 1: of a reasonable viewer of the docu drama, the obscene

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Speaker 1: term that was used and this phrase dragon lady would

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Speaker 1: have the same effect, and so it really can't be

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Speaker 1: regarded as in any way defamatory or insulting to put

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Speaker 1: those words into Mr Haveln's mouth. It's a close call,

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Speaker 1: and maybe that should have gone to a jury to

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Speaker 1: decide what a reasonable viewer the docu drama would conclude.

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Speaker 1: But that's what the court said, really because Dragon Lady

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Speaker 1: seems a far cry from you know, yelling an obscenity

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Speaker 1: about someone, and it goes to the court the claim

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Speaker 1: she was making that she was being portrayed as a

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Speaker 1: vulgar person who would use um these sorts of curse

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Speaker 1: words when she specifically did not use curse words, and

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Speaker 1: so in that respect it may be reaching a bit

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Speaker 1: far by the court, but they court strongly felt that

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Speaker 1: First Amendment protections were an issue here and that they

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Speaker 1: had to provide such protection in order to allow doc

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Speaker 1: you dramas to continue to be made. And remember, movies, films,

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Speaker 1: television are big business in California, and the California courts

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Speaker 1: do tend to bend over backwards to protect that key industry.

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Speaker 1: And Terry addressed the actual malice issue in the case.

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Speaker 1: So under California law, um, when you portray or alleged

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Speaker 1: to portray somebody in a false light. The California courts

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Speaker 1: has said that's the equivalent of libeling them, and that therefore,

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Speaker 1: in connection with a public figure of celebrity such as Olivia,

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Speaker 1: to have land um, the plaintiff has to show that

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Speaker 1: the defendant engaged in actual malice, in other words, that

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Speaker 1: they knew what they were portraying would be defamatory and

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Speaker 1: intended it to be um defamatory and hurtful towards the

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Speaker 1: public figure. And that's a very high standard that's been

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Speaker 1: set by the United States Supreme Court and libel law

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Speaker 1: and adopted into California law, which makes it very very

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Speaker 1: hard in these celebrity cases um for them to obtain

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Speaker 1: any relief on the grounds of some sort of false

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Speaker 1: light lawsuit. So terry, How much do these decisions tell

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Speaker 1: us about the liberty that producers and writers of docu

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Speaker 1: dramas can take when they're portraying living people. Well, it

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Speaker 1: appears to allow very great liberties be taken in these

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Speaker 1: docu dramas. Indeed, the court seems to encourage um more fiction.

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Speaker 1: It specifically says that if you are portraying these characters

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Speaker 1: as too realistic, too close to the actual historical events,

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Speaker 1: you may indeed running a foul of these California statutory

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Speaker 1: and common law rights. Whereas if you introduce enough elements

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Speaker 1: of fiction, you quote transform close quote the historical facts

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Speaker 1: enough to obtain First Amendment protection. And there have been

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Speaker 1: lawsuits over fictionalized dramas, for example, over the film hurt

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Speaker 1: Locker and Wolf of Wall Street. It seems to me

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Speaker 1: and I don't keep track of these as well as

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Speaker 1: you do, but it seems as if the courts are

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Speaker 1: usually on the side of the filmmakers rather than the

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Speaker 1: people being portrayed. There's no question about that. June and

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Speaker 1: hurt Locker is a good example. Here you have a distinguished,

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Speaker 1: decorated UM service member fought in Iraq being portrayed in

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Speaker 1: less than a positive light, and his lawsuit was not

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Speaker 1: allowed to go for it, just as here to have

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Speaker 1: one very famous, respected actress not allowing her suit to

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Speaker 1: go forward. The California courts seem to be bending over

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Speaker 1: backwards to protect the oilm innistry. And we'll have to

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Speaker 1: have you back Terry because we didn't get a chance

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Speaker 1: to introduce the intellectual property milestone that we celebrated last

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Speaker 1: week on January one, when works published before nine three

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Speaker 1: by legendary writers, composers, painters, and filmmakers entered the public domain,

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Speaker 1: so we'll have you back for that. Thanks so much, Terry.

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Speaker 1: That's Terence Ross. He is a partner at Caton, Nuchin

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Speaker 1: and Rosen. Men. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg