Appeals Court Hears Olivia de Havilland’s Suit Against Cable Network

LOS ANGELES (CN) – The California Court of Appeals heard arguments on a false light claim brought by actress Olivia de Havilland against FX Network for its depiction of her in the docudrama series “Feud: Joan and Bette” where the actress says words were put in her mouth without her permission.

De Havilland, 101, was granted a speedy trial last year by a California Superior Court judge on her claims of invasion of privacy against Ryan Murphy, creator of the series and the FX Network. In turn, they filed an anti-SLAPP motion, saying her claim would set a dangerous precedent for a celebrity’s publicity rights against free speech.

But last year a superior court judge allowed the case to proceed.

In the series, de Havilland is portrayed by Catherine Zeta-Jones. “Feud” centered on the rivalry between Joan Crawford and Bette Davis during the making of “What Ever Happened to Baby Jane?” in the early 1960s.

In their briefs, de Havilland’s attorneys argued that the series used her celebrity for profit and portrayed her in a false light. For years, the actress has cultivated a refined reputation that would not use that type of language, according to the briefs.

Attorneys for FX Network argued the portrayal used de Havilland’s story as “raw material” to tell a story.

On Tuesday, the case was argued before the Second Appellate District at the Gould Law School at the University of Southern California before District Judges Anne Egerton, Superior Court Judge Halim Dhanidina sitting Pro-Tem and presiding Judge Lee Smalley Edmon.

The creators of the show did not make claim that de Havilland’s portrayal in the show was sanctioned by the actress, argued Kelly Klaus with Munger, Tolles and Olson.

A mock interview format where Zeta-Jones speaks as de Havilland is not an endorsement from the actress.

“How that could possibly be taken by a viewer that de Havilland approved it was not shown,” said Klaus, arguing that the claim of malice was not met.

One instance includes a dramatized interview at the 1963 Academy Awards in which de Havilland is shown gossiping about the two women and later in the series she calls her sister, actress Joan Fontaine, a “bitch.”

In her deposition, de Havilland said, “That kind of vulgarity is not language that I use.” In a separate real-world interview, de Havilland referred to her sister as a “dragon lady.”

The makers of the show are trying to say that the words “bitch” and “dragon lady” are interchangeable, said de Havilland lawyer Suzelle Smith with Howarth and Smith.

Dhanidina asked if there was a substantial difference between the two words.

“Dragon lady” is used in novels, a term that is used to describe women who are aggressive, said Smith

“Ms. de Havilland chose her words carefully,” said Smith when she referred to her sister in a real-world interview as a dragon lady. The show’s portrayal made de Havilland appear unprofessional and talks ill about her friends and family.

“She never went there,” said Smith.

Docudramas will exist, argued Smith, but those need to be true to the people that are portrayed.

Egerton asked if the court made a series like “The People vs. OJ Simpson” which was cited in the appellant’s briefs, and if the portrayal of Judge Lance Ito was accurate, would the creators have to get his permission?

Smith said no, because a literal interpretation is all right. But the creators of “Feud” admitted to taking de Havilland’s story and altering it for entertainment purposes.

Later, Edmon asked if a celebrity gets to weigh in on how they are portrayed, how is it not censorship?

Smith said the press, biographers and filmmakers can make an accurate work and mistakes may slip in, but the admitted fabrication of de Havilland’s story is not protected by the First Amendment.

“We want truth. We want accuracy,” Smith said.

The panel did not say when they would make their decision.

 

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