Olivia de Havilland, at 101, gears up for a fight in 'Feud' court battle

By Nardine Saad 

Los Angeles Times, Los Angeles (August 30, 2017, 1:15 PM)

 Two-time Oscar winner Olivia de Havilland. (Genaro Molina / Los Angeles Times)

Hollywood legend Olivia de Havilland has strengthened her resolve in her court battle with FX and "Feud" showrunner Ryan Murphy.

The 101-year-old, two-time Oscar winner regarded the network's "weak" move on Tuesday to dismiss her latest complaint as a sign of "their continuing disrespect for her and for California law," her attorney, Suzelle M. Smith, said in a statement to The Times on Wednesday.

It’s the latest move in the "Gone With the Wind" star’s lawsuit against FX and Murphy, which she filed in June over her depiction in “Feud: Bette and Joan,” the miniseries about rival actresses Bette Davis and Joan Crawford. The Paris-based De Havilland, who was played by Catherine Zeta-Jones in the docudrama, makes four major legal claims about violations of her common law and statutory rights of publicity, her right to privacy and unjust enrichment.

Her latest amended complaint was meant to establish the legal elements of falsity, reckless disregard for the truth and a conscious decision by FX and Murphy not to obtain her consent to use her name or character, Smith said in her statement.

Dishy details about the main characters and other Hollywood power players, as well as whether De Havilland described her sister and storied rival Joan Fontaine as a "bitch" in the series, are among the items discussed in De Havilland's amended complaint and FX's motion to strike it.

"In an effort to discredit her, they attempt to throw mud on a great lady," Smith said. The complaint also explained that De Havilland, an English dame, "built a public image of being a lady" who did "not speak in crude and vulgar terms about others, including her sister."

FX and Murphy's motion "strengthened Miss de Havilland’s resolve to stand up to big Hollywood and fight for her rights, and the rights of all others in such circumstances," Smith wrote. "If Defendants' view of the law were to prevail, then the California statute giving a celebrity the exclusive right to control and profit from her name and identity, and protect her reputation, would be meaningless."

Smith said the actress would be filing an opposition to the motion on Sept. 15, just days before the Primetime Emmy Awards, where "Feud" is expected to be a big winner, with18 nominations.

Catherine Zeta-Jones as Olivia de Havilland in "Feud." (Kurt Iswarienko / FX)

The defendants' Tuesday motion cited the U.S. and California Constitutions' rights to free speech in connection with a public issue and petitioned the court to strike De Havilland's latest complaint. It also asked for an order awarding them attorney's fees and costs, according to court documents obtained by Deadline.

"Feud: Bette and Joan," they argued, "is a prime example of an important expressive work."

"In dramatizing the infamous rivalry between iconic actors Bette Davis and Joan Crawford and how that rivalry played out during the shooting of their 1962 film What Ever Happened to Baby Jane?, Feud is a social commentary on Hollywood's history of sexism, misogyny, and media manipulation, issues that still plague Hollywood today," the motion said.

FX and Murphy's attorneys argued that De Havilland's consent was not needed to include her in the show, nor did her inclusion violate her right of publicity. They argued that De Havilland "cannot carry her burden of showing a probability of prevailing on any of her four causes of action" under the state's anti-SLAPP statutes protecting petition and free speech rights.

The 25-page motion went to great lengths to explain how "Feud" is "an expressive television show and concerns matters of public interest."

"Feud's depiction of Plaintiff is transformative and constitutionally protected for that separate reason,” the motion said. “Moreover, a public figure like [de Havilland] cannot hold the creators of an expressive work liable in tort absent falsity and actual malice, neither of which is present here."

"Finally,” the motion said, “[De Havilland's] fourth cause of action for unjust enrichment claim fails because it is derivative of her other claims and is not a separate claim under California law."

A hearing in the case is set for Sept. 29 in Los Angeles Superior Court with Judge Holly E. Kendig presiding. Earlier this month, De Havilland's legal team filed a motion to expedite the lawsuit due to her advanced age.