De Havilland v. FX Networks, LLC

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.

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

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

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, 147 Cal.Rptr.3d 88 ; see also Code Civ. Proc., § 425.16(a) ; cf. Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108 , 1114, fn. 3, 57 Cal.Rptr.2d 207 [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, 81 Cal.Rptr.2d 471 , 969 P.2d 564 .) "[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, 81 Cal.Rptr.2d 471 , 969 P.2d 564 .)

"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, 3 Cal.Rptr.3d 636 , 74 P.3d 737 .) 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, 124 Cal.Rptr.2d 507 , 52 P.3d 685 .) 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, 123 Cal.Rptr.2d 19 , 50 P.3d 733 ; see also HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204 , 212, 12 Cal.Rptr.3d 786 ["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, 123 Cal.Rptr.2d 19 , 50 P.3d 733 ; see also Jackson v. Mayweather (2017) 10 Cal.App.5th 1240 , 1251, 217 Cal.Rptr.3d 234 ( 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] gave rise to our anti-SLAPP statute." ( Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392 , 398, 13 Cal.Rptr.3d 353 .)

Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146 , 1162, 1169-1172, 15 Cal.Rptr.3d 100 [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, 83 Cal.Rptr.2d 443 [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, 52 Cal.Rptr.2d 357 ["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 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, 55 Cal.Rptr.3d 600 , quoting New York Times Co. v. Sullivan (1964) 376 U.S. 254 , 272, 84 S.Ct. 710 , 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, 55 Cal.Rptr.3d 600 .) 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, 154 Cal.Rptr.3d 698 ; see also Mundy v. Lenc (2012) 203 Cal.App.4th 1401 , 1408, 138 Cal.Rptr.3d 464 ["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 two-step 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

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, 26 Cal.Rptr.2d 834 , 865 P.2d 633 .) "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 1268 ; Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47 , 50 Cal.Rptr.3d 607 ), 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];

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.

or mere fantasy is a judgment left to the reader or viewer, not the courts." ( Guglielmi, supra, 25 Cal.3d at pp. 869-870, 160 Cal.Rptr. 352 , 603 P.2d 454 .)

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, 79 Cal.Rptr.2d 207 ["[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 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

to a reasonable person or defamatory, and (4) made with actual malice. ( Brodeur , supra , 248 Cal.App.4th at p. 678, 204 Cal.Rptr.3d 483 ; see also Dodds v. American Broadcasting Co . (9th Cir. 1998) 145 F.3d 1053 ( Dodds ); cf. Fellows, supra, 42 Cal.3d at p. 239, 228 Cal.Rptr. 215 , 721 P.2d 97 ["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

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, 204 Cal.Rptr.3d 483 , quoting Tamkin, supra, 193 Cal.App.4th at pp. 144-145, 122 Cal.Rptr.3d 264 .)

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

Authors write books. Filmmakers make films. Playwrights craft plays. And television writers, directors, and producers create television

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

brought to chill the valid exercise of a party's constitutional right of petition or free speech. [Citation.] The purpose of the anti-SLAPP

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 anti-SLAPP 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, 124 Cal.Rptr.2d 530 , 52 P.3d 703 .) 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." (

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, 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

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 , 97 S.Ct. 2849 , 53 L.Ed.2d 965 ( Zacchini ), the only United States Supreme Court case to "review[ ] the 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, 97 S.Ct. 2849 .) 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

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 , 160 Cal.Rptr. 352 , 603 P.2d 454 ( 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 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, 160 Cal.Rptr. 352 , 603 P.2d 454 .) 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, 160 Cal.Rptr. 352 , 603 P.2d 454 .) 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, 160 Cal.Rptr. 352 , 603 P.2d 454 .) "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, 160 Cal.Rptr. 352 , 603 P.2d 454 .) "[T]ruthful and fictional accounts" "have equal constitutional stature." ( Id . at p. 871, 160 Cal.Rptr. 352 , 603 P.2d 454 .) 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, 160 Cal.Rptr. 352 , 603 P.2d 454 .)

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

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, 106 Cal.Rptr.2d 126 , 21 P.3d 797 ; Winter v. DC Comics (2003) 30 Cal.4th 881 , 887-888, 891, 134 Cal.Rptr.2d 634 , 69 P.3d 473 ( Winter ); Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133 , 145, 122 Cal.Rptr.3d 264 ( Tamkin ); Dyer v. Childress (2007) 147 Cal.App.4th 1273 , 1280, 55 Cal.Rptr.3d 544 ; Polydoros v. Twentieth Century Fox Film Corp . (1997) 67 Cal.App.4th 318 , 324-325, 79 Cal.Rptr.2d 207 ( Polydoros ).) Federal courts applying California law have as well. (See, e.g., Sarver , supra , 813 F.3d at p. 905, fn. 9 [noting Guglielmi post-dated 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, 18 Cal.Rptr.2d 790 [producer of documentary about surfers 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, 79 Cal.Rptr.2d 207 [" 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

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, 40 Cal.Rptr.2d 639 [First Amendment protected posters that reproduced newspaper stories and photographs of famous quarterback "for two distinct reasons: first, because the posters 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." (

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, 106 Cal.Rptr.2d 126 , 21 P.3d 797 .) 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, 106 Cal.Rptr.2d 126 , 21 P.3d 797 .) 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 elements are present to warrant First Amendment protection." ( Id. at p. 407, 106 Cal.Rptr.2d 126 , 21 P.3d 797 .) 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[

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, 106 Cal.Rptr.2d 126 , 21 P.3d 797 .) 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 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.

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, 217 Cal.Rptr.3d 234 .) " '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, 204 Cal.Rptr.3d 483 ( 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, 228 Cal.Rptr. 215 , 721 P.2d 97 ( 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, 204 Cal.Rptr.3d 483 , quoting Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146 ,161, 269 Cal.Rptr. 379 ( Aisenson ).)

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

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, 39 Cal.Rptr.2d 848 ( 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, 275 Cal.Rptr. 494 ; 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 ).)

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, 39 Cal.Rptr.2d 848 .) 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, 269 Cal.Rptr. 379 .) 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 flourishes"; most viewers of docudramas "are aware by now that parts of such programs are more fiction than fact"].)

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 pp. 1264-1265, 217 Cal.Rptr.3d 234 ; 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

that the defendant " 'intended to 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, 150 Cal.Rptr. 258 , 586 P.2d 572 ( 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.

"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, 128 Cal.Rptr.3d 109 .) Because de Havilland's right of publicity