LOS ANGELES (CN) – Hollywood legend Olivia de Havilland lost her fight against the creators of the FX Network docudrama series “Feud: Joan and Bette,” after a California appeals court ruled the series’ portrayal of the actress is protected by the First Amendment.
De Havilland complained about the way “Feud” – which centers on the rivalry between actresses Joan Crawford and Bette Davis during the making of their film “What Ever Happened to Baby Jane” – portrays her. De Havilland, as played by Catherine Zeta-Jones, is shown as a gossip who uses the word “bitch,” which de Havilland said portrays her in a false light.
Specifically, de Havilland complained FX and Murphy profited off things that didn’t happen, as the actress has for years cultivated a refined reputation and wouldn’t use the type of language the show attributes to her.
Last year, a state court judge granted the 101-year-old De Havilland’s request for a speedy trial on claims of invasion of privacy against FX and Ryan Murphy, creator of the series.
The network responded with an anti-SLAPP motion, saying de Havilland’s claim would set a dangerous precedent in favor of a celebrity’s publicity rights over free speech. LA County Judge Holly Kendig allowed the case to proceed.
But on Monday, the Second Appellate District reversed, finding Kendig’s ruling “leaves authors, filmmakers, playwrights, and television producers in a Catch-22.”
Writing for the three-judge panel, Justice Anne Egerton said “Feud” is protected under the First Amendment – even though the creators of the docudrama did not purchase de Havilland’s “rights” or get her permission.
Egerton also referenced Murphy’s other series, “The People v. O.J. Simpson, noting they portrayed Judge Lance Ito without acquiring his rights.
In her lawsuit and following briefs, de Havilland argued the use of a fictitious interview “is structured as an endorsement of [Feud].”
But the panel found nothing to support her argument.
“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,” Egerton wrote.
What’s more, the panel found the portrayal of de Havilland is transformative. In briefs and during the oral argument last week, attorneys referenced the “transformative” test used in a Supreme Court case that involved merchandise featuring “The Three Stooges.”
The panel agreed an artistic expression that takes on the form of a literal depiction or imitation of a celebrity for commercial gain directly trespasses on the right of publicity. But courts have struggled to apply that same test to films, plays, and television programs.
“The fictitious, ‘imagined’ interview in which Zeta-Jones talks about Hollywood’s treatment of women and the Crawford/Davis rivalry is a far cry from T-shirts depicting a representational, pedestrian, uncreative drawing of The Three Stooges. The de Havilland role, performed by Zeta-Jones, constitutes about 4.2 percent of ‘Feud,’” Egerton wrote for the panel.
De Havilland’s attorney Suzelle Smith, of Howarth and Smith, called the opinion a pro-industry decision, and said it was “written before the hearing less than a week ago.”
“The Court of Appeal, unlike the trial Court, has taken on itself the role of both Judge and jury, denying Miss de Havilland her Constitutional rights to have a jury decide her claims to protect the property rights in her name or to defend her reputation against knowing falsehoods,” Smith said in a written statement.
De Havilland tried to ground her claim of false light of privacy in four scenes or lines in the docudrama series, including the dramatized interview, the de Havilland character’s reference to sister, actress Joan Fontaine, as her “bitch sister,” another use of the word “bitch,” and the de Havilland character’s statement that Frank Sinatra drank all the alcohol in a dressing room.
But the panel found Zeta-Jones’ portrayal of de Havilland is one of a guide, like “Beatrice to the viewer’s Dante” in “The Divine Comedy.”
Egerton also noted the de Havilland character’s role in the miniseries was limited to less than 17 minutes of the 392-minute, 8-part series.
She added, “As played by Zeta-Jones, the de Havilland character is portrayed as beautiful, glamorous, self-assured, and considerably ahead of her time in her views on the importance of equality and respect for women in Hollywood.”
Numerous parties filed briefs to weigh in on the First Amendment matter, including Intellectual Property and Constitutional Law Professors, A&E Television Networks, Screen Actors Guild American Federation of Television and Radio Artists and the Electronic Frontier Foundation.
FX Networks is represented by Glenn D. Pomerantz with Munger, Tolles & Olson.
Los Angeles County Superior Court Judge Halim Dhanidina, sitting by designation, and Presiding Justice Lee Smalley Edmon joined Egerton’s opinion.
Best known for her role as Melanie Hamilton Wilkes in “Gone With the Wind” and as Maid Marion opposite Errol Flynn in “The Adventures of Robin Hood,” de Havilland was nominated for five Academy Awards – including back-to-back Best Actress nods – and won two. She retired from acting in 1989.