In early November, we reported that the U.S. Supreme Court was considering whether to hear Olivia de Havilland’s appeal of the dismissal of her right-of-publicity and false-light privacy claims against the producers of the popular television miniseries Feud, in which de Havilland didn’t care for the way she was depicted. We predicted that, in light of prior cases protecting film producers against such claims under the First Amendment, “the U.S. Supreme Court is likely to deny certiorari in the de Havilland case and allow the dismissal of her claims to stand.”
Today the Supreme Court announced that it has, indeed, denied de Havilland’s petition. There was nothing sufficiently novel about de Havilland’s claims to distinguish them from those of many others who objected to the way in which they were “fictionalized” for purposes of a movie or television series.
The denial passes up an opportunity for the Court to examine the current state of right-of-publicity jurisprudence, which for more than a decade has been skewed by a series of cases denying First Amendment protection to producers of video games who use avatars of real athletes, while continuing to uphold the right of movies, television, and other forms of expression to use and fictionalize real persons. That long overdue examination must wait for another day.
The U.S. Supreme Court has agreed to hear arguments in the case of Iancu v. Brunetti. This, as you may recall, is an appeal regarding the constitutionality of the Lanham Trademark Act’s section 2(a) provision precluding registration of “immoral” or “scandalous” trademarks. In the wake of the much-discussed 2017 Supreme Court decision in Matal v. Tam, finding that the “disparaging marks” provision of that same section violates the First Amendment, the U.S. Patent and Trademark Office (USPTO) refused to register the mark FUCT for various articles of clothing.