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In the Supreme Court of the United States

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In the Supreme Court of the United States NO. 18-453 In the Supreme Court of the United States OLIVIA DE HAVILLAND, DBE, Petitioner, v. FX NETWORKS, LLC AND PACIFIC 2.1 ENTERTAINMENT GROUP, INC., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE CALIFORNIA COURT OF APPEAL, SECOND DISTRICT BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI SARAH G. BOYCE KELLY M. KLAUS Munger, Tolles & Olson LLP Counsel of Record 1155 F Street, NW JENNIFER L. BRYANT Washington, DC 20004 Munger, Tolles & Olson LLP (202) 220-1100 350 South Grand Ave. 50th Floor Los Angeles, CA 90071 (213) 683-9100 [email protected] Counsel for Respondents i QUESTION PRESENTED Whether the California Court of Appeal erred in holding, under the state’s anti-SLAPP statute, that Petitioner could not proceed with her claims for: (1) false-light invasion of privacy, because (a) as a matter of California law, Respondents’ portrayal of Plaintiff was not “highly offensive” and thus not actionable; and (b) as a matter of law, Peti- tioner, who indisputably is a “public figure,” could not show that Respondents acted with “actual malice” in their depiction of Petitioner; and (2) violation of California’s common law and stat- utory right of publicity, where the court concluded that Respondents’ portrayal of a character based on Petitioner was “transformative” as a matter of law and therefore subject to a complete defense under California Supreme Court precedent? ii CORPORATE DISCLOSURE STATEMENT Respondents are FX Networks, LLC and Pacific 2.1 Entertainment Group. Inc. Respondents’ ulti- mate parent company is Twenty-First Century Fox, Inc., a publicly traded company. There is no parent or publicly held company owning 10% or more of Twenty-First Century Fox, Inc.’s stock. iii TABLE OF CONTENTS PAGE QUESTION PRESENTED ........................................... i CORPORATE DISCLOSURE STATEMENT ............. ii TABLE OF AUTHORITIES ........................................ v INTRODUCTION ........................................................ 1 STATEMENT OF THE CASE ..................................... 3 A. Factual Background ............................... 3 B. State Court Proceedings ......................... 6 REASONS FOR DENYING THE PETITION ........... 13 I. This Court Cannot and Should Not Review the Dismissal of Petitioner’s False-Light Claim ............................................ 13 A. This Court Lacks Jurisdiction Over Petitioner’s False-Light Claim ..................................................... 13 B. Even if this Court had Jurisdiction, the Court of Appeal’s Factbound Application of the Actual Malice Rule Does Not Merit Certiorari Review ................ 15 II. The Court of Appeal’s Dismissal of Petitioner’s Right-of-Publicity Claim Does Not Warrant Review .............................. 22 CONCLUSION ........................................................... 24 iv TABLE OF AUTHORITIES PAGE(S) FEDERAL CASES Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967) .............................................. 17 Dodds v. American Broad. Co., 145 F.3d 1053 (9th Cir. 1998) .............................. 11 Fox Film Corp. v. Muller, 296 U.S. 207 (1935) .............................................. 13 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ............................ 17, 18, 19, 20 Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989) .............................................. 17 Herb v. Pitcairn, 324 U.S. 117 (1945) .............................................. 13 Michigan v. Long, 463 U.S. 1032 (1983) ...................................... 13, 15 New York Times v. Sullivan, 376 U.S. 254 (1964) .......................................... 1, 20 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) .............................................. 17 Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016) ................................ 23 v Thoroughbred Legends, LLC v. The Walt Disney Co., No. 1:07-CV-1275-BBM, 2008 WL 616253 (N.D. Ga. Feb. 12, 2008) .................... 20, 21 United States v. Alvarez, 567 U.S. 709 (2012) ........................................ 18, 19 STATE CASES Aisenson v. American Broad. Co., 220 Cal. App. 3d 146 (1990) ................................. 15 Brodeur v. Atlas Entm’t, Inc., 248 Cal. App. 4th 665 (2016) ................................ 14 Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001) .................................... 12, 23 Gilbert v. Sykes, 147 Cal. App. 4th 13 (2007).................................. 11 Good Gov’t Grp. of Seal Beach, Inc. v. Superior Court, 22 Cal.3d 672 (1978) ............................................. 11 Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860 (1979) ............................................ 21 Rusheen v. Cohen, 37 Cal. 4th 1048 (2006) .......................................... 9 FEDERAL STATUTES 28 U.S.C. § 1257 ..................................................... 2, 14 vi STATE STATUTES Cal. Civ. Code § 3344 ................................................. 23 Cal. Civ. Proc. Code § 425.16............................. 1, 9, 12 OTHER AUTHORITIES Emily Nussbaum, “Feud”: A Bittersweet Beauty, THE NEW YORKER (Mar. 20, 2017), available at https://www.new yorker.com/magazine/2017/03/20/feud -a-bittersweet-beauty; ............................................ 4 Epic TV Experience, SALON (Mar. 4, 2017), available at https://www.salon.com/2017/03/04/ with-feud-bette-and-joan-a- hollywood-rivalry-for-the-ages- becomes-an-epic-tv-experience/.............................. 4 1 INTRODUCTION Applying its state’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, the California Court of Appeal unanimously held that Petitioner had no probability of prevailing on her claims that Respondents placed her in a false light or violated her right of publicity through their inclusion of an Olivia de Havilland character in the Emmy-winning miniseries Feud: Bette and Joan (“Feud”). The court’s decision rested on a straightforward application of well-established law. Petitioner’s mischaracterizations of Feud and of the court of appeal’s opinion fail to obscure the fact that there is nothing cert-worthy about this case. Contrary to Petitioner’s hyperbole, the court of appeal did not hold that the First Amendment “grant[s] absolute immunity to docudramas,” (Pet. at 13)—nor anything close to that. The court actually held, far more modestly, that Petitioner’s false-light claim failed as a matter of law because (1) she could not show that the snippets of dialogue that formed the basis for her claim were “highly offensive to a reasonable person,” as they must be under California law for Petitioner to have a claim (Pet. App. at 29a- 34a); and (2) alternatively, Petitioner had no evidence that Respondents, who indisputably tried to portray Petitioner as the wise and respectful counselor and friend to Davis that she was in real life, acted with “actual malice,” as New York Times v. Sullivan, 376 U.S. 254 (1964), and its progeny require in a case of alleged public-figure defamation (Pet. App. at 37a- 38a). The court’s first holding, which Petitioner barely acknowledges, provides an adequate and independent state-law ground for the decision below, with the consequence that this Court has no certiorari juris- 2 diction under 28 U.S.C. § 1257 to review the dismis- sal of the false-light claim. Moreover, the court’s alternative holding is a factbound application of the “actual malice” standard that does not merit this Court’s review, even if the Court had jurisdiction. Petitioner’s arguments for review of the court of appeal’s right-of-publicity ruling—set forth largely in one footnote in the Petition—likewise miss the mark. The court of appeal did not hold that the First Amendment absolutely immunizes any use of “the name and identity of a living person” in a docudrama, irrespective of other facts; nor did the court’s decision rest on a purely quantitative analysis of “how many minutes of time are spent on subjects other than the” right-of-publicity plaintiff. (Pet. at 19 n.34.) The court instead held that the First Amendment applied to Feud, an expressive work, and that there was no evidence that Respondents falsely implied Petition- er’s endorsement of the miniseries. The court also held, under California Supreme Court precedent, that Respondents had a “transformative” defense to Peti- tioner’s right-of-publicity claim, both because Peti- tioner’s name and likeness were simply “raw materi- als” from which the larger work was “synthesized,” and because the primary economic value of Feud did not derive from Petitioner’s fame. (Pet. App. at 27a.) Petitioner presents no grounds justifying this Court’s review of these factbound determinations. 3 STATEMENT OF THE CASE A. Factual Background 1. Feud: Bette and Joan Feud is an eight-part televised miniseries that tells the story of the legendary rivalry between the actors Bette Davis and Joan Crawford. The series’ initial episodes focus on the conflicts between Davis and Crawford during the 1962 filming of Whatever Happened to Baby Jane? (“Baby Jane”), the only movie in which both appeared. Later epi- sodes portray the fallout from that experience, includ- ing the ill-fated attempt by Baby Jane’s director, Robert Aldrich, to reprise the Davis-Crawford pairing during the 1964 filming of Hush … Hush, Sweet Charlotte (“Charlotte”). Crawford was eventually fired from Charlotte, and Petitioner replaced her in the movie. Feud uses the Davis-Crawford relationship from 1960s Hollywood to explore current-day issues affect- ing women, including ageism, sexism,
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