Will Recent Court Rulings Endanger the Future of Biopics and Documentaries?

A Lynyrd Skynyrd movie ban and Olivia de Havilland's recent legal victory are causing Hollywood studios, press organizations and others to speak up, lest they lose that right.
Courtesy of Ray Mickshaw/FX
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Thanks to two recent judicial decisions, appeals courts will be grappling with issues that could impact the future of biopics, documentaries and maybe even journalism. As a result, Hollywood studios, press organizations and others are coming out in force to warn of consequences.

The first case concerns a film titled Street Survivor: The True Story of the Lynyrd Skynyrd Plane Crash.

On Aug. 18, a New York federal judge banned the movie because filmmakers had gotten material from Artimus Pyle, a former drummer in Lynyrd Skynyrd who once agreed not to capitalize on the 1977 plane crash that killed two Lynyrd Skynyrd members. U.S. District Judge Robert Sweet ruled Pyle willingly bargained away his free speech rights, and, accordingly, producers must be enjoined from acting in concert with him.

The decision is bothering some powerful entities in Hollywood. This week, A&E, HBO, MGM, NBCUniversal, Paramount Pictures, Sony, 20th Century Fox, Univision and Warner Bros. requested permission to file an amicus brief in the appeal now before the 2nd Circuit.

"The creation of a movie, television miniseries or documentary necessitates the investment of enormous time and resources," the companies state in the brief. "All of these amici have been threatened with litigation because people did not like what a film or program portrayed, or because they claim a right to control its content. Yet to amici’s knowledge, outside the context of intellectual property disputes — and in decades past, the regulation of obscenity — no appellate court has ever affirmed a prior restraint of a motion picture. If this Court were to adopt the District Court’s unprecedented and unconstitutional view of the prior restraint doctrine, it would significantly chill the willingness of content creators to undertake the substantial research necessary to create high-quality films, television programs and documentaries that depict real people and events."

Parading a spate of films including Hidden Figures, The Social Network, Snowden and American Sniper that dramatize real people, the studios speak to how it's just not possible to "start over" whenever a court finds something wanting. As for Street Survivor, they object to Sweet's conclusion that the filmmakers had constructively waived any First Amendment rights by creating a movie with Pyle's participation.

This isn't just about Hollywood moviemaking. Imagine for a moment if The New York Times couldn't publish its Harvey Weinstein exposé last week because of the confidentiality agreements signed by his female accusers. Well, that's a concern for the media.

In a separate amicus brief from the Reporters Committee for Freedom of the Press and 13 media organizations, the consequences of the Lynyrd Skynyrd movie ban are presented in another light.

"Amici are concerned that, if this Court were to permit an injunction permanently preventing the publication of speech in this instance, such a precedent could be used to permanently enjoin the press from publishing information from a source on the basis of the source’s agreements with other entities," they state. "The court below indicated the injunction was not a blanket prohibition on producing a film on a particular subject, but it effectively does serve as such when a contractually limited source is involved at any step of the process."

It's not only the Aug. 18 ruling that may unsettle films and TV shows that depict real-life events.

On Sept. 29, a Los Angeles Superior Court judge rejected a bid by FX Networks to stop a lawsuit from 101-year-old Gone With the Wind actress Olivia de Havilland over the Ryan Murphy series Feud: Bette and Joan. Here's the written opinion.

What likely will be most concerning for other studios — and media groups — is Judge Holly Kendig's discussion of de Havilland's claim that FX violated her right of publicity by using her likeness without prior consent. FX argued that a fictionalized depiction of the actress in its series was constitutionally protected and "transformative," but Kendig rejected the legal reasoning.

Specifically, the judge pointed to the one and only Supreme Court case that dealt with publicity rights — Zacchini v. Scripps-Howard, which involved a man who performed a human cannonball trick — and another opinion that dealt with lithographs of the Three Stooges for the proposition that depictions of celebrities that merely appropriate a celebrity's economic value are not protected under the First Amendment. As to the argument that Feud made transformative use of de Havilland's life, Kendig wasn't impressed.

"[B]ecause the Defendants admit that they wanted to make the appearance of Plaintiff as real as possible, there is nothing transformative about the docudrama," wrote Kendig in her decision. "Moreover, even if Defendants imagined conversations for the sake of being creative, such does not make the show transformative."

The judge also cited the expert declaration of Mark Roesler, who routinely brokers deals for the estates of dead stars and here said that de Havilland could have sold her image rights for between $1.8 million to $2.1 million.

On Tuesday, FX filed a notice of appeal.

Although the appeal will be expedited thanks to de Havilland's advanced age, it is too soon for amicus briefs.

But some are already writing about its significance.

"[W]e have warned that the transformative use test threatens all creative expression about real people, including in film and TV," writes Electronic Frontier Foundation's Daniel Nazer. "Now we know we were right to worry. ... With this ruling, we have reached the bottom of the slippery slope: Accurate speech about real people is not protected by the First Amendment."