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Sometime this month, the United States Supreme Court will announce whether it will grant certiorari to hear an appeal of Olivia de Havilland’s case against the producers of the popular television miniseries Feud. The series dramatized the legendary animosity between old Hollywood superstars Joan Crawford and Bette Davis. De Havilland—portrayed by Catherine Zeta Jones—was a minor character in the series. She didn’t care for the way she was presented and sued the producers, FX Networks, alleging violation of her right of publicity as well violation of her privacy by portraying her in a false light.

In 2010, Army Sergeant Jeffrey Sarver had brought suit against the producers of the Best Picture Oscar-winning film The Hurt Locker, alleging the same claims: that the film had used him as a character without his permission, and had also portrayed him in ways that were inaccurate and personally offensive to him. The U.S. District Court for the Central District of California dismissed all of Sarver’s claims, and in 2016, the Ninth Circuit affirmed.

But the Sarver court had a challenge to face. During the six years that Sarver’s case was making its way through the court system, a cluster of other cases alleging right of publicity violations were making news—and new law. Former NFL and NCAA football players brought a series of lawsuits against Electronic Arts, maker of a popular line of NFL and NCAA-based video games. Relying on the test developed by the California Supreme Court in Comedy III Productions v. Saderup, a case involving an artist’s merchandising of the images of The Three Stooges, a succession of state and federal courts held that the video football games—which enabled players to manipulate historical teams and work with actual players and their statistics—violated the former players’ publicity rights. By portraying them as football players—“doing exactly what they do as celebrities”—EA had made non-transformative use of the players appearance, identities, and other identifying information, and were thus liable to the players for having used this information without obtaining permission. Had the use been sufficiently “transformative”—essentially imparting new art and purpose to its portrayal of the players—EA would have been able to avail itself of a First Amendment defense. But under the “transformativeness test,” EA’s use of the players seemed to the courts to be less creative speech than commercial exploitation of the athletes’ identities. So when the Ninth Circuit found that the producers of The Hurt Locker did not violate Sarver’s rights, the court had to distinguish its holding from those of the athletes’ cases against EA.

The court might have said that Sarver’s image and persona were simply more “transformed” than were the athletes’ personas in the EA games, and this gave the movie producers a First Amendment defense that was denied to the video game producers. But they didn’t do that. Instead, they said that the dismissal of Sarver’s claims was distinguishable from the affirmation of the athletes’ claims because Sarver, unlike the athletes, did not depend on his renown as a source of income. The fact that The Hurt Locker had portrayed a fictionalized version of Sarver doing exactly what he did as a risk-taking bomb disposal expert in Iraq did not entitle Sarver to compensation because what Sarver did had not made him famous or given licensable value to his persona the way football had done for the athletes. In other words, Sarver wasn’t a celebrity.

The right of publicity has never been limited to celebrities, and in fact arose as a means by which both celebrities and ordinary folks could protect their names and images from being exploited by others for commercial gain. Of course, most right of publicity cases have involved celebrities; but that’s not because the cause of action is limited to celebrities but rather because celebrities’ images have more value and are more likely to be exploited, and because celebrities have the money to bring lawsuits that are beyond the reach of ordinary folks.

Enter Olivia de Havilland, who actually is a celebrity. But in March of 2018, the Court of Appeal for the Second District of California, Division 3, decided her case exactly the way the Ninth Circuit decided Sarver’s, and it did so because the First Amendment protects the use of actual people and events by makers of literature, theatre, movies, and other works of creative expression. Without such protection, the ability of arts and popular culture to educate, entertain, and comment upon our society would be limited in ways inconsistent with our ideals of freedom.

The U.S. Supreme Court is likely to deny certiorari in the de Havilland case and allow the dismissal of her claims to stand. In light of Sarver and numerous other cases before it, the First Amendment defense rightly prevailed. Which leaves hanging the question of why it didn’t prevail in the EA cases—a question that the Supreme Court will have to address if it does grant cert, because de Havilland (unlike Sarver) is suggesting that the same transformative-use test that vindicated the athletes’ claims should be applied in her case, and her claims should be granted because the film Feud portrayed her as a motion picture actress and Hollywood star “doing exactly what she does as a celebrity.” If the Supreme Court takes the case, it will have to sort out the conundrum noted by the de Havilland court:

The trial court’s ruling leaves authors, filmmakers, playwrights, and television producers in a Catch-22. If they portray a real person in an expressive work accurately and realistically without paying that person, they face a right of publicity lawsuit. If they portray a real person in an expressive work in a fanciful, imaginative—even fictitious and therefore “false”—way, they face a false light lawsuit if the person portrayed does not like the portrayal.

To put it another way, de Havilland’s claim was that the makers of Feud had fictionalized her enough to violate her privacy rights by portraying her in a false light, but not enough to escape the transformativeness test’s mandate that portraying celebrities doing what they do or did as celebrities avoids a First Amendment defense. The court didn’t buy it. “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,” the court wrote, “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.”

If the Supreme Court grants cert and affirms the lower court, it will have to explain why the transformativeness test should not apply to de Havilland’s case—and, by extension, whether it was rightly applied in the athlete cases. This would make de Havilland v. FX a pivotal case, especially in light of the Supreme Court’s own pronouncement in its 2011 opinion in Brown v. Entertainment Merchants Association, striking down as unconstitutional a California law restricting the sale of violence-oriented video games, that

Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection.

Is the standard for athletes portrayed in video games the same as the standard for famous people portrayed in movies? If not, why not? And if so, what do we do about all those video game cases and their troubling assault on the First Amendment?

The Supreme Court may well decide not to sift through this particular mare’s nest. But if they do grant cert, the resulting opinion could be monumental for right of publicity jurisprudence and for the First Amendment.

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