LOS ANGELES (CN) – “Gone with the Wind” actress Olivia de Havilland wants to go to the California Supreme Court with her lawsuit against the creators of the docudrama series “Feud: Joan and Bette” after a California appeals court ruled earlier this year the series’ portrayal of the actress is protected by the First Amendment.
De Havilland, 101, took issue with her portrayal in the 8-part series that appeared on the FX Network in 2017. The series centers on the rivalry between actresses Joan Crawford and Bette Davis during the making of their film “What Ever Happened to Baby Jane.” 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.
She filed a lawsuit against the network and show creator Ryan Murphy, also known for helming “American Horror Story” and “The People v. O.J. Simpson.” A state court judge granted her lawyer’s request for a speedy trial on claims of invasion of privacy.
In turn, the network responded with an anti-SLAPP motion, saying her claim would set a new precedent where a celebrity’s publicity rights would trump free speech. A Los Angeles judge allowed the case to proceed, but the Second Appellate District reversed, finding that the previous ruling “leaves authors, filmmakers, playwrights, and television producers in a Catch-22.”
“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,” wrote Justice Anne Egerton.
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 in March.
On Friday, Smith petitioned the California Supreme Court to take up the case. In the 38-page petition, she asks if the court’s interpretation of the anti-SLAPP statute makes it unconstitutional, as a violation of a person’s right to a jury trial.
Smith said she questions if a First Amendment defense blocks both a defamation/false light claim and a right to publicity claim, which was her argument during oral argument in the appeals court.
“The de Havilland case is being closely followed,” Smith writes in the petition.
“It is the textbook vehicle for this court to address these issues of statutory and constitutional significance, including the “inviolate” right to civil jury trial on issues of fact under California’s Constitution, and the vitality of the right of publicity and defamation causes of action, when plaintiff offers admissible evidence, both percipient and expert, that defendants knowingly or recklessly made false statements and misappropriated her literal identity, damaging her professional reputation and profiting themselves,” the petition states.
Smith said the appellate court’s opinion that de Havilland’s right of publicity claim was not a basis for false light, despite the use of her name along with photographs of Zeta-Jones in social media promotion for the series.
“There is no consideration of Plaintiff’s evidence to the contrary,” Smith writes.
De Havilland was nominated for five Academy Awards, including back-to-back Best Actress nods and won two. She retired from acting in 1989 and currently lives in Paris, France.