'Feud,' Olivia de Havilland and the "Bitch" vs. "Dragon Lady" Debate

By Mike Kaplan
(The Hollywood Reporter)

As her attorneys petition the California Supreme Court, the actress' portrayal on the award-winning miniseries is again in the spotlight.

*[Editor's note: Attorneys for Olivia de Havilland filed a petition with the California Supreme Court on Friday to review a California appeals court decision in March that dismissed the actress’ lawsuit against Ryan Murphy and FX in which she claimed the miniseries Feud: Bette and Joan made her look like a vulgar hypocrite and gossip.

During the hearing that preceded the appeals court decision, much of the oral argument revolved around whether the word “bitch” — which actress Catherine Zeta-Jones, who played de Havilland on the series, uses to refer to de Havilland’s sister Joan Fontaine — is an acceptable synonym for the term “dragon lady,” a phrase that de Havilland did once use to refer to her sister. During the proceeding, de Havilland’s attorney argued that the actress never referred to her sister as a "bitch," while attorneys representing Murphy countered that he used the word “bitch” because he believed the terms "dragon lady" and "bitch" generally had the same meaning and “dragon lady” would not have been recognized and understood by modern audiences.]*

In the oral arguments in the suit brought by Olivia de Havilland against FX and the producers of Feud, for presenting her in a "false light" and defaming her reputation, much attention was spent debating the impact and intent of using the word “bitch” rather than ”dragon lady,” when used by de Havilland to describe her sister and fellow Oscar-winner Joan Fontaine at a particular time in their stormy relationship.

Unlike most major stars of Hollywood’s “Golden Age,” Havilland never engaged in salacious gossip nor was involved in any romantic scandal. Intelligence and depth of character was her public persona, consistent with the depth, diversity and intelligence of her acting. She was known as “The Queen of Radiant Calm.”

In the miniseries Feud, which centers on the rivalry between screen icons Bette Davis and Joan Crawford, de Havilland’s character frames the piece, in interviews that never occurred, in which she offers sardonic gossip about the Davis-Crawford relationship and Frank Sinatra’s drinking and calls Fontaine her “bitch sister.”

Nothing in de Havilland’s public or private life substantiates this speech, which is a deliberate fabrication posing as reality.

There is a record of de Havilland once referring to Fontaine as “the dragon lady," which Feud’s creators and lawyers now assert is an equivalent to “bitch”… and that "bitch" was a necessary word to use since contemporary audiences weren’t familiar with “dragon lady" and wouldn’t understand the allusion.

However, “bitch” and “dragon lady” aren’t equivalents. “Bitch” is a derogatory pejorative, a direct invective and a vulgarity. “Dragon lady” connotes someone who is exotic, beautiful, glamorous and intelligent, who can also be calculating and intimidating. And coming from de Havilland, that choice description would have a degree of wit. A dragon lady is a complex figure: a bitch is one-dimensional.

As Warner Bros. head Jack L. Warner said of de Havilland, who fought him over the studio contract system and won, “There is a brain like a computer behind those fawn-like eyes.”

That brain didn’t choose “dragon lady” lightly. One can deduce it also refers to the fact that Fontaine spent much of her formative years in Japan.

The origin of the name comes from Terry and the Pirates, Milton Caniff’s popular comic strip in which the “Dragon Lady” first appeared. She was a gorgeous Asian woman, mysterious, aggressive and a character one waited for. I remember her entrance in one panel, clothed in a stunning pink silk sheath, challenging and breathtaking. So much more interesting and formidable than the mundane ”bitch.”

Today’s audiences are, in fact, well aware of another current dragon lady, one who is exotic, intelligent, aggressive, beautiful and a cultural phenomenon. She is “Khaleesi, Danerys Targaryen, The Mother of Dragons,” and played by Emilia Clarke, she is arguably the most resilient and important character on Game of Thrones.

Justice Anne Egerton, who wrote the 36-page ruling only four days after the oral arguments, cited language that read like a press release for Feud, and which displayed little knowledge or understanding of critical standards regarding acting, film history or de Havilland’s extraordinary career and importance as a figure of integrity in a business where dignity is at a premium.

She accepted the FX description that in Catherine Zeta-Jones performance, de Havilland 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.” This is pretentious nonsense, configured to elevate Feud to some higher level of importance rather than what it is — a beautifully produced entertainment about two complicated and often volatile movie legends coming together to create a new genre for aging stars, abetted by one of Hollywood’s boldest directors, Robert Aldrich.

While the respective performances of Susan Sarandon and Jessica Lange as Davis and Crawford are rich and nuanced, Aldrich (Alfred Molina) is shamefully misrepresented. A fearless filmmaker (Attack, The Dirty Dozen, Kiss Me Deadly) and a forceful president of the DGA, he achieved landmark contracts for its members, but is falsely depicted as a spineless wimp and studio toady, furthering Feud's pattern of fabrications.

Zeta-Jones is fundamentally miscast as de Havilland — as played by Zeta-Jones, de Havilland is “self-assured” only in conveying gossip and without an iota of the fierce intelligence needed to be concerned about “the inequality of women in Hollywood.” That thematic statement from Feud is an obvious ploy to capitalize on current issues and is given slight attention or insight in the program.

Returning to the question of bitch vs. dragon lady, Egerton assumes that de Havilland’s portrayal is “not highly offensive to a reasonable person as a matter of law.” Most people may not be familiar with the “matter of law.” But most people who have seen the most successful film of all time, Gone With the Wind, or viewed The Adventures of Robin Hood countless times or watched many of de Havilland's 49 movies, from Hold Back the Dawn and Dodge City to her Oscar-winning To Each Our Own and The Heiress, would indeed find it highly offensive and unreasonable to believe this distinguished, acclaimed actress would use profanity in any public forum, let alone in discussing her sister.

The effect on the minds of her many thousands of fans and admirers would be devastating. If she actually called Fontaine a “bitch,” as opposed to the multi-layered “dragon lady,” a respected bond would be shattered.

I have had brief encounters with both sisters and worked for months with Bette Davis while producing her last film, The Whales of August, and she would have exploded over how her friend, Olivia, and her director are depicted in Feud.

During my first job after college graduation as editorial associate and film critic for The Independent Film Journal, a bi-weekly trade publication supported by the Independent Theater Owners Association, whose editor Mort Sunshine produced high-end charity events, I watched as Fontaine arrived at the Americana Hotel in New York for one such event. The star of Rebecca and Suspicion appeared in a stunning, strapless red gown and ascended the escalator to applause — elegant, glamorous and totally in control — to be greeted at the top by a very pleased Mort, ready to escort her in. It was a perfectly staged and executed entrance.

Two years, one avenue and four blocks later, the entire advertising and publicity department were seated in the conference room of the MGM Building with de Havilland, who had recently arrived from Paris. She had called the meeting to learn of everything that had been arranged for the Atlanta premiere of a technically enhanced, remastered Gone With the Wind. As the last surviving major figure of the beloved film, she wore the mantle of its importance with grace and significance. I was the MGM publicist responsible for print and broadcast publicity, and she wanted to know about every aspect of the film’s presentation, details that straddled arrivals, attendees, premiere timing, post-premiere party, size of the various locations and her wardrobe. When she was satisfied all was well, we rose in unison as she made her exit. It was a precise, professional and perfectly executed meeting.

An hour later, we ran into each other on Sixth Avenue. Knowing she had nothing planned on her schedule that afternoon, I asked if she wanted to join my friend and me for lunch. “Thank you, you’re very kind,” she said, “but I’m having lunch with my sister.”

Aside from their career achievements, whatever squabbles, disagreements and estrangements the sisters engaged in during their lives, they were bonded by blood in how they appeared and conducted themselves. They were both circumspect and specific. In a 2016 interview in reference to her sister, de Havilland said, “'Dragon Lady,' as I eventually decided to call her, was a brilliant, multi-talented person but with an astigmatism in her perception of people and events, which often caused her to act in an unfair and even injurious way.”

The media’s coverage of the “bitch-dragon lady” debate has clouded the case’s main issue — the necessity of maintaining ethical concerns for the truth while exercising First Amendment rights.

Murphy, Feud’s talented creator, said he didn’t want “to intrude” on de Havilland before making the miniseries. Perhaps the insults and misrepresentation to her character could have been avoided if they had had personal contact. Instead, the honor and reputation of a national treasure has been impugned by not according her the same amount of concern given the program’s principals — Davis and Crawford — and that makes her portrayal all the more disheartening and offensive.

The court of appeals decision did not end the controversy, with de Havilland’s attorneys now petitioning to have it reviewed. As Fontaine once warned, her sister doesn’t give up without a fight. Referring to de Havilland’s successful court cast against Warners in 1943, Fontaine once said of their family’s dynamic, “We don’t knuckle under. We fight for what is right.”

Mike Kaplan ID has worn various hats as a producer, documentary director, indie distributor and marketing strategist, working closely with Stanley Kubrick, Robert Altman, Hal Ashby, Lindsay Anderson, Mike Hodges and Alan Rudolph. His film poster exhibit, The Art of the Movie Poster: Highlights From the Mike Kaplan Collection, is currently on view at LACMA through July 1.

De Havilland Takes 'Feud' Fight to California High Court

By Bonnie Eslinger
(Law360)

Olivia de Havilland asked the California Supreme Court to review a lower court decision tossing her lawsuit alleging FX Network’s “Feud: Bette and Joan” defiles and unlawfully profits from her name, saying Friday the opinion “eviscerates” the court’s 2001 opinion supporting a celebrity’s publicity rights.

The silver-screen actress sued FX and the producers of the docudrama over her unauthorized portrayal, claiming under California’s “right to publicity” statute she was protected from the allegedly false commercial exploration. In March, however, the state’s appeals court found the creative liberties taken with her character were protected by the First Amendment.

In a news statement, issued from her home in Paris, the 101-year-old de Havilland said the state’s high court should hear the case, for her sake and for others.

“My case is about FX publishing false statements about me and using my name without consent. I, and other individuals in like circumstances, should not be denied our constitutional right to trial by jury,” de Havilland said.

The decision by the lower appellate court reversed a September ruling by a Los Angeles Superior Court judge denying FX and Pacific 2.1 Entertainment Group’s motion to strike de Havilland’s suit under California’s anti-SLAPP statute. The anti-SLAPP, or Strategic Lawsuit Against Public Participation, law protects the exercise of free speech by forcing lawsuits that would constrain speech to show a likelihood of succeeding on the merits at the pleadings stage.

De Havilland’s petition to the California Supreme Court submitted Friday seeks for the state’s high court to review and reverse the lower appellate court opinion, so her litigation can proceed.

The appeals court found that a portrayal of de Havilland by Catherine Zeta-Jones in “Feud” or the use of her name did not constitute an endorsement of the show by the elderly actress. As such, the defendants did not need to acquire rights from de Havilland to portray her in their docudrama, the opinion said.

In addition, the appeals court found that the show’s portrayal of the real de Havilland was creatively transformed within the fictional context of “Feud,” due to its artistic elements and because Zeta-Jones’ de Havilland character was a smaller role.

That finding, de Havilland said, runs roughshod over the “transformative” test within the high court’s own 2001 ruling in Comedy III Productions Inc. v. Gary Saderup, a case involving the rights to the image of the The Three Stooges.

In that ruling the court said it formulated “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.”

In the FX show, de Havilland’s name is used, along with her photograph, and her character is portrayed realistically, the petition to the California Supreme Court states.

The opinion of the lower appellate panel “simply rewrites this court’s test so that it is meaningless, and holds that conventional, literal portrayals are entitled to First Amendment protection if there is some fictional component to the work,” de Havilland said.

De Havilland also turned the court’s attention to its 2003 ruling in Winter v. DC Comics, a case in which the comic book franchise prevailed because the court found that the two real-life musicians who were portrayed in a comic were not “conventional depictions” but distortions for “purposes of lampoon, parody or caricature.”

That’s not the case with de Havilland’s depiction, her petition argues.

“This court should make clear that such ‘literal’ portrayals are actionable under the Comedy III — Winter transformation test, and the right to publicity does not evaporate for docudramas,” the actress states.

An attorney for de Havilland issued a statement on Friday.

“The Court of Appeal opinion, if allowed to stand, will infringe on the constitutional right to a trial by jury not only of Miss de Havilland, but for any person in a similar situation, whether a celebrity or not,” said Suzelle Smith of Howarth & Smith. “This puts everyone at the mercy of the media and entertainment industry, which may find that false statements and fake news sell better than the truth.”

“Feud” was created by producer Ryan Murphy to tell the story of the historic Hollywood rivalry between Bette Davis and Joan Crawford when they were making the 1962 film “What Ever Happened to Baby Jane?”

De Havilland, who first sued last June, claims the show wrongfully portrayed her as the kind of person who engaged in “gossipmongering” about other actors — including calling her sister, Joan Fontaine, a “bitch.”

Other scenes at issue include a 1978 red carpet interview that allegedly never occurred and a dig at Frank Sinatra’s alleged alcoholism that de Havilland says never happened.

In September, de Havilland beat back FX’s anti-SLAPP motion, with a Los Angeles County Superior Court judge finding the actress provided sufficient evidence to support a claim that certain scenes portrayed her in a false light.

Although Judge Holly Kendig agreed with FX that de Havilland’s false light and right to publicity claims stemmed from protected activity, she ultimately concluded the actress met her burden to show a likelihood of succeeding on the merits, citing a minimal threshold at the anti-SLAPP stage.

Judge Kendig rejected FX’s arguments that the portrayal wasn’t defamatory, saying that a viewer “may think plaintiff to be a gossip who uses vulgar terms.”

FX and Pacific 2.1 Entertainment prevailed in their appeal and the suit was tossed, leading to de Havilland’s Friday petition to the California Supreme Court.

During the FX defendants' appeal, several companies and organizations got involved in the case as amici, chiming in on either side of the court battle.

The Screen Actors Guild—American Federation of Television and Radio Artists had argued on de Havilland’s side that because the actress is still alive, the show's creators had a responsibility to ensure it didn't dishonor her reputation, according to its brief.

That contention was offset by an avalanche of amici on behalf of FX arguing that the free-speech implications of letting de Havilland sue over the portrayal would freeze creativity in Hollywood and beyond, according to their filings.

Representatives for FX and Pacific 2.1 Entertainment did not immediately respond to requests for comment Friday.

De Havilland is represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.

FX and Pacific 2.1 Entertainment are represented by Glenn D. Pomerantz and Kelly Klaus of Munger Tolles & Olson LLP.

The case is Olivia de Havilland v. FX Networks LLC et al., case number S248614, in the Supreme Court of California.

Olivia de Havilland Takes FX 'Feud' to California Supreme Court

By Ashley Cullins
(The Hollywood Reporter)

The 101-year-old actress isn't giving up in her legal fight with Ryan Murphy and FX.

Olivia de Havilland's legal loss to FX and Ryan Murphy was celebrated as a win by docudrama creators, but attorneys for the actress say the decision effectively kills the right to a jury trial in defamation cases.

The actress sued last year, claiming the series Feud: Bette and Joan inaccurately portrayed her as a vulgar gossip in violation of her privacy and publicity rights.

The network and Murphy asked the court to toss the case under California's anti-SLAPP statute, which brings an early end to frivolous lawsuits arising from protected conduct like free speech. Judge Holly Kending found that, while Feud was clearly protected speech, de Havilland demonstrated a minimal probability of prevailing on her claims and allowed the suit to proceed.

That ruling was overturned by a California appeals court in March, after oral arguments that largely focused on whether Catherine Zeta-Jones' portrayal was a positive one and if "bitch" is still considered a highly offensive term. De Havilland's lawyer Suzelle Smith characterized the decision as "pro-industry" and said it was "clearly written before the hearing."

In a petition for review filed Friday, Smith asks the state's high court to evaluate whether the appellate ruling renders the anti-SLAPP statute unconstitutional and if the use of a living celebrity's name and likeness in a realistic portrayal can possibly be considered "transformative" under the law.

"The de Havilland case is being closely followed," writes Smith. "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."

Smith notes the court has not yet addressed publicity and false light claims in connection to anti-SLAPP procedures and says it should do so.

"California’s anti-SLAPP statute involves several issues of constitutional significance, including the right to free speech, the right to petition, and the right to jury trial, which must be carefully balanced in applying the statute," she writes. "Otherwise, the statute can be used to undermine rather than protect constitutional rights."

The 2nd District's finding that de Havilland was obligated to present "credible evidence" was incorrect, Smith argues, and so was its opinion that the actress must prove knowing and reckless falsehood by direct, rather than circumstantial, evidence.

"It is the role of the jury, not the Court, to determine the credibility of admissible direct and circumstantial evidence produced by a plaintiff," Smith writes. "The Opinion arrogates to the court the right to judge credibility, an unconstitutional extension of the statute."

Smith also claims the opinion effectively eliminates jury trials in defamation cases.

"The Opinion, if left to stand, would extend constitutional protection to any knowingly false statements as long as the defendant produces a self-serving declaration claiming they were made in good faith," she writes. "Such a result would effectively abolish virtually all claims of defamation and false light."

Kelly Klaus, attorney for FX and Murphy, has not yet commented on the petition.

Olivia de Havilland Looks to Revive ‘Feud’ Defamation Suit

By Daniel Holloway
(Variety)

Olivia de Havilland has asked the Supreme Court of California to review a decision by a lower court throwing out her lawsuit against FX Networks.

In March, a three-judge panel of the state appeals court tossed out de Havilland’s defamation suit, in which the actress claimed that the miniseries “Feud” included a damaging portrayal of her. The decision by the appeals court was viewed as an affirmation of the right of filmmakers to embellish the historical record.

“Whether a person portrayed in one of these expressive works is a world-renowned film star — ‘a living legend’ — or a person no one knows, she or he does not own history,” Justice Anne Egerton wrote at the time. “Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.”

In a statement Friday, de Havilland’s attorney claimed that the appeals court threatens the actress’ rights and those of others, including non-celebrities.

“The Court of Appeal opinion, if allowed to stand, will infringe on the Constitutional right to a trial by jury not only of Miss de Havilland, but for any person in a similar situation, whether a celebrity or not. This puts everyone at the mercy of the media and entertainment industry, which may find that false statements and fake news sell better than the truth,” said Suzelle Smith, who represents de Havilland. “No filmmaker, biographer, or reporter with integrity can support the Court of Appeal decision. It rewards the unscrupulous and will put those who investigate and seek to tell the public the truth at an economic disadvantage.”

“Feud,” from executive producer Ryan Murphy, is a dramatization of the real-life rivalry between actresses Bette Davis and Joan Crawford. In the miniseries, de Havilland is played by Catherine Zeta-Jones and is a supporting character. De Havilland’s attorney argued that she is incorrectly portrayed as a gossip who spoke casually and disparagingly of friends and acquaintances such as Davis, Crawford, Frank Sinatra, and her own sister, Joan Fontaine.

A key issue at a hearing in front of the appeals-court panel in March was the use twice by de Havilland’s character of the word “bitch” in reference to Fontaine. De Havilland’s lawyer argued that no record exists of de Havilland ever using the word, much less to identify Fontaine. FX’s lawyer cited on-the-record comments that de Havilland has made referring to Fontaine as a “dragon lady.”

Olivia De Havilland, FX Argue Over the Word ‘Bitch’ in ‘Feud’ Hearing

By Daniel Holloway
(Variety)

feud.jpg

Olivia De Havilland’s attorney argued Tuesday that there is a significant difference between the actress calling her sister a “bitch” and calling her sister a “dragon lady.”

Attorneys for De Havilland and for the cable channel FX appeared at a California Court of Appeal hearing to argue whether the actress’ lawsuit against producers of the miniseries “Feud: Bette and Joan” can move forward. A state superior court judge in August turned down FX’s request to have the suit thrown out. FX appealed, leading to Tuesday’s hearing. FX wants the suit tossed under California’s anti-SLAPP statute, claiming that the suit could have a chilling affect on free speech.

The plaintiff’s lawyer complained that De Havilland is portrayed as a gossip who spoke casually and disparagingly of friends and acquaintances such as Bette Davis, Joan Crawford, Frank Sinatra, and her sister, Joan Fontaine. A key issue, acknowledged Tuesday by both sides, was the use twice by De Havilland’s character — played in the series by Catherine Zeta-Jones — of the word bitch in reference to Fontaine. De Havilland’s lawyer argued that no record exists of De Havilland ever using the word, much less to identify Fontaine. FX’s lawyer cited on-the-record comments that De Havilland has made referring to Fontaine as a “dragon lady.”

Judge Halim Dhanidina, one of three judges on the panel, asked De Havilland’s attorney, “Is there a substantial difference between calling someone a bitch and calling her a dragon lady?” drawing laughter. De Havilland’s attorney replied, “Yes, there is, your honor,” adding, “In my household, if you say the word ‘bitch,’ you get your mouth washed out.”

De Havilland’s attorney argued that FX violated De Havilland’s publicity rights as a celebrity. She said that FX profited by having “honest, closed-mouthed, ladylike Olivia De Havilland” say that Crawford and Davis “hated each other and we loved them for it,” disparage Fontaine, and joke about Frank Sinatra’s drinking.

De Havilland’s attorney also dismissed the argument, asserted by FX, that such artistic liberties in a docudrama like “Feud” are protected free speech under the First Amendment and that to side with De Havilland would effectively destroy the ability of filmmakers to create such docudramas.

“Of course we will still have docudramas,” the attorney said. “What we need to have are docudramas that don’t defame, that don’t tell lies.”

Justice Lee Smalley Edmon responded, “How is that not censorship?” The attorney replied that it is not censorship because docudramas that don’t portray events in a way that is “intentionally false” would be protected. When Edmon asked whether the producers of “American Crime Story: The People v. O.J. Simpson” would have needed to gain Judge Lance Ito’s permission before producing a series that presents a reasonably accurate portrayal of Ito. De Havilland’s attorney responded that the First Amendment would protect an accurate portrayal.

FX’s attorney argued that the use of the word “bitch” by the De Havilland character in “Feud” is neither overly obscene nor out-of-character for the real-life De Havilland. He cited a reference in Shaun Considine’s book “The Divine Feud” to De Havilland using the word, allegedly saying “I don’t like to play bitches.” In “Feud,” the De Havilland character says a similar line, then adds “call my sister.”

“The show simply does not portray Ms. De Havilland as a vulgarian,” the FX attorney said. He noted that the De Havilland character is only on screen in 18 of the series’ 402 minutes, and is shown for the most part as being a supportive friend and confidante to Davis. He added that producers had changed “dragon lady” to “bitch” in another piece of dialogue because they felt the two words were synonyms and that “bitch” would resonate more with a contemporary audience. He also argued that De Havilland’s attorneys have failed to show necessary malice on the part of FX and the producers.

The court did not make a decision on whether or not the suit will move forward.

De Havilland, who is 101, sued FX in June, objecting to her portrayal in the Ryan Murphy series. In January, the MPAA joined with FX, urging the appellate court to overturn the superior court decision and throw out the suit. In their brief, the MPAA’s lawyers argued that they “cannot overstate the serious implications of the trial court’s ruling” for filmmakers who draw on real events for fictionalized works.

Tuesday’s hearing, through a quirk of scheduling, took place at the USC Gould School of Law, part of a program in which, once a year, the appeals court holds hearings on the USC campus in front of an audience of first-year law students, who are required to attend. De Havilland’s attorney began her argument by saying, “Olivia De Havilland is still alive,” noting that many of the students in attendance may not be aware of that fact.

Netflix, SAG Weigh In On Opposite Sides In FX ‘Feud’ Row

By RJ Vogt
(Law360, Los Angeles)

Four groups of amici, with members including the MPAA, Netflix and A&E, told a California appeals court Thursday that FX’s “Feud: Bette and Joan” show is protected from Olivia de Havilland’s false light and right of publicity claims under the First Amendment, while SAG filed a bid to support the 101-year-old actress.

Netflix Inc. and the Motion Picture Association of America Inc. said in their request to file an amicus curiae brief in support of FX Networks LLC and Pacific 2.1 Entertainment Group Inc. that screenwriters need the freedom to make compelling work without fear of liability in order to produce docudramas like “Feud,” which by design do not portray individuals or events literally.

The Screen Actors Guild-American Federation of Television and Radio Artists, on the other hand, said in its request that because Havilland is still alive, the creators had a responsibility to ensure it didn't dishonor her reputation.

A lower court had agreed to let de Havilland’s suit continue in September after finding FX rearranged timelines, made up dialogue and failed to get her consent, but Netflix and the MPAA argued in Thursday’s filing that the trial court’s analysis creates an “untenable Catch-22” where too-realistic docudramas can be accused of violating subjects’ right of publicity while those deemed too dramatic are actionable under false light.

“Affirming the trial court’s analysis — an unprecedented deviation from decades of case law protecting freedom of expression from state tort law claims — threatens to doom entire genres of fact-based motion pictures, including docudramas and biopics,” the filing said.

“Feud” was created by producer Ryan Murphy to tell the story of the historic Hollywood rivalry between Bette Davis and Joan Crawford when they were making the 1962 film “What Ever Happened to Baby Jane?”

De Havilland, who first sued in June, claims the show wrongfully showed her as the kind of person who engaged in “gossipmongering” about other actors — including calling her sister, Joan Fontaine, a “bitch.”

Other scenes at issue include a 1978 red carpet interview that allegedly never occurred and a dig at Frank Sinatra’s alcoholism that de Havilland, who is played by Catherine Zeta-Jones, says never happened.

After FX lost its bid to kill the suit in September, the network quickly appealed, noting that due to de Havilland’s age, it would pursue speedy proceedings.

That took the case to California’s Court of Appeal, where Netflix and the MPAA argued in Thursday’s filing that in order to be found in violation of false light claims, de Havilland should’ve passed the actual malice standard and shown that FX and Pacific 2.1 intended the defamatory portrayal and had actual knowledge of the falsity portrayed.

“There is absolutely no evidence here that Feud’s creators ever intended to portray Ms. de Havilland as a gossip, nor even any evidence that they had any inkling that the mere portrayal of her character giving fictional interviews (which was clearly intended to be a thematic framing device) would even be interpreted as implying that Ms. de Havilland was a gossip,” Netflix and the MPAA said.

They also said the First Amendment provides docudramas “robust protection” against right of publicity claims like de Havilland’s because the medium is “vital to public discourse in a free society.”

But according to counsel for the actress Suzelle Smith of Howarth & Smith, the position Netflix and MPAA have taken is “near-extra-terrestrial.” She told Law360 on Friday that sensationalized, reckless falsehoods are not protected by the Bill of Rights, nor is achieving increased ratings a justification for violating the law.

“What is at stake here is not freedom of genuine honest expression, but whether the industry can take for itself valuable property rights belonging to the living owner of a famous name and simultaneously dishonor her by putting falsehoods in her mouth,” Smith said.

Smith added that her client appreciates the amicus support of SAG-AFTRA, which filed a proposed amicus brief the same day Netflix and the MPAA filed theirs.

In SAG’s filing, the union said the First Amendment does not provide absolute protection and must be balanced against other rights. Although SAG did not take a position on the specific facts of de Havilland’s case, the group said the show’s creators could not claim their version of the actress was so transformative that she herself has no grounds to claim right of publicity.

“No matter how much labor and art went into this [production], its purpose was to transform the appearance of the actress portraying Dame de Havilland to better resemble Dame de Havilland,” SAG said. “It was not done to transform a loose depiction of Dame de Havilland into something new.”

In addition to SAG, Netflix and MPAA, three other groups requested permission to file amicus briefs in the closely watched case. On Wednesday, a group of intellectual property and constitutional law professors asked to weigh in and support FX, while Thursday saw an additional request in support of FX filed by a group comprising the Electronic Frontier Foundation, the Organization for Transformative Works and the Wikimedia Foundation.

A group including A&E Television Networks LLC, Discovery Communications LLC, Imperative Entertainment LCC, Urban One Inc., Critical Content LLC, the Reporters Committee for Freedom of the Press and the First Amendment Coalition also filed a proposed amicus brief supporting the show’s creators on Thursday.

Counsel for FX and Pacific 2.1 did not immediately respond to a request for comment on Friday.

Counsel for the amici groups supporting FX also did not immediately respond to requests for comment, nor did counsel for SAG.

De Havilland is represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.

FX Networks LLC and Pacific 2.1 Entertainment Group Inc. are represented by Glenn D. Pomerantz of Munger Tolles & Olson LLP.

The MPAA and Netflix are represented by Frederic D. Cohen and Mark A. Kressel of Horvitz & Levy LLP.

SAG is represented by its General Counsel Duncan W. Crabtree-Ireland.

A&E Television Networks LLC, Discovery Communications LLC, Imperative Entertainment LCC, Urban One Inc., Critical Content LLC, the Reporters Committee for Freedom of the Press and the First Amendment Coalition are represented by Rochelle L. Wilcox of Davis Wright Tremaine LLP.

The Electronic Frontier Foundation, the Organization for Transformative Works and the Wikimedia Foundation are represented by Daniel K. Nazer of the Electronic Frontier Foundation.

The group of professors is represented by Jennifer E. Rothman of Loyola Law School, Los Angeles, and Eugene Volokh of UCLA School of Law.

The case is FX Networks LLC et al. v. Olivia de Havilland, number B285629, in the California Court of Appeal, Second Appellate District.

FX Can't Toss Olivia de Havilland's 'Feud' Portrayal Suit

By Melissa Daniels
(Law360, Los Angeles)

Olivia de Havilland beat back an anti-SLAPP motion from FX Networks in her lawsuit over its “Feud: Bette and Joan” series on Friday when a California judge found the 101-year old actress provided sufficient evidence to support a claim that certain scenes portrayed her in a false light.

Los Angeles Superior Court Judge Holly Kendig denied the anti-SLAPP, or Strategic Lawsuit Against Public Participation, motion that sought to toss out de Havilland’s suit accusing FX Networks LLC of damaging her reputation with the hit series “Feud.” FX argued the eight-part series is protected under the First Amendment.

Though Judge Kendig agreed with FX that de Havilland’s false light and right to publicity claims arise from protected activity, she ultimately concluded de Havilland met her burden to show a likelihood of succeeding on the merits, citing a minimal threshold at the anti-SLAPP stage. She rejected FX’s arguments that the portrayal wasn’t defamatory, saying that a viewer “may think plaintiff to be a gossip who uses vulgar terms.”

The judge also examined whether the show’s creator acted with actual malice, or with knowledge of falsity or reckless disregard for the truth. Though the show’s creators declared that they undertook extensive historical research and aimed to create a nuanced, accurate depiction, de Havilland was never contacted during the show’s production, Judge Kendig said.

“Miss de Havilland was alive,” Judge Kendig said. “She could’ve answered questions.”

Robert Rotstein of Mitchell Silberberg & Knupp LLP, who is representing FX, told Judge Kendig they planned to appeal. Given de Havilland’s age, he said he would work with her attorneys to ensure speedy proceedings.

“Feud” was created by producer Ryan Murphy to tell the story of the historic Hollywood rivalry between Bette Davis and Joan Crawford when they were making the 1962 film “What Ever Happened to Baby Jane?”

De Havilland, who first sued in June, says the show wrongfully showed her as the kind of person who engaged in “gossipmongering” about other actors — including calling her sister, Joan Fontaine, a “bitch.”

Other scenes at issue include a 1978 red carpet interview that allegedly never occurred and a dig at Frank Sinatra’s alcoholism that de Havilland, who was played by Catherine Zeta-Jones, says never happened.

FX’s anti-SLAPP motion said de Havilland’s “meritless” suit should be rejected because of First Amendment protections for expressive works. It argued that de Havilland couldn’t prove her false light claim because she couldn’t prove the required elements, which are the same as those for defamation: proof of falsity, defamatory meaning and actual malice.

In looking to knock out the right to publicity claims, FX argued that de Havilland couldn’t prevail partly because the dramatizations in "Feud" are transformative.

But on Friday, Judge Kendig shot down the transformative argument, pointing to the creators’ own declarations that they strove to make a nuanced, historically accurate depiction of the celebrities in the show.

“Because of that, there’s nothing transformative about this docudrama,” Judge Kendig said.

After the judge spent about an hour walking through the reasoning for her tentative ruling, FX’s counsel Rotstein pushed back against the actual malice analysis, arguing that there was no evidence that the show’s creators acted recklessly. There’s a difference, he said, between false and dramatized.

“They did research, they tried to make it right,” he said. “When writers try to make it right, that can’t be actual malice.”

But de Havilland’s attorney Suzelle Smith of Howarth & Smith argued that all the research the show’s creators claimed to do put together a “structured, grafted” series that mixed historical facts and falsehoods.

“We’re not defeated just because they say, ‘We didn’t mean to do it,’” Smith said.

Don Howarth of Howarth & Smith, who also represents de Havilland, told Law360 after the hearing that FX’s actions took his client’s “name and image for their own benefit” without any compensation.

“They didn’t consult with her, they didn’t verify, they didn’t do anything,” he said.

An attorney for FX declined to comment.

De Havilland is represented by Suzelle Smith, Don Howarth and Zoe E. Tremayne of Howarth & Smith.

FX and the production company are represented by Robert H. Rotstein, Emily F. Evitt and Aaron M. Wais of Mitchell Silberberg & Knupp LLP.

The suit is de Havilland v. FX Networks LLC et al., case number BC667011, in the Superior Court of the State of California, County of Los Angeles.

Olivia de Havilland, 101, Wins Round In FX Fight: Bette Davis, Joan Crawford Pic Lawsuit

By Christina Kelley
(My News LA)

Olivia de Havilland can move forward with her lawsuit alleging FX Networks falsely portrayed her in an anthology series about the infamous feud between fellow actresses Bette Davis and Joan Crawford and used her image without providing any compensation, a judge ruled Friday.

The judge rejected defense arguments to dismiss her case on free-speech grounds.

“They’re in deep trouble,” de Havilland attorney Don Howarth said outside the courtroom after Los Angeles Superior Court Judge Holly Kendig issued her ruling.

Howarth predicted a jury will see the case in the same way as the judge.

FX Networks attorney Robert Rotstein told the judge his clients will appeal, but that he would work with the other side to try and keep the trial date reasonably close to the Nov. 27 date Kendig previously set in giving de Havilland priority because the actress is 101 years old.

In her ruling, Kendig said that although the series “Feud: Bette and Joan” was aired in the public forum of television and dealt with a subject of public interest, de Havilland still showed a likelihood of “prevailing on the merits.”

Kendig also found that de Havilland — who under the law is a public figure — showed that the network either knew that aspects of the series were false, or did not care whether they were true or not.

The judge cited four examples, including a depiction of a 1978 Academy Awards interview in which de Havilland disparaged Davis and Crawford. Kendig said the evidence showed the interview never took place.

Kendig also said de Havilland was falsely portrayed as someone who was a “gossip” and who used vulgar language against others, including her sister, Joan Fontaine, and that she had made disparaging remarks about Frank Sinatra’s drinking habits.

Kendig said she disagreed with the defense that the series was “transformative” and said there was evidence the network benefited financially from the use of de Havilland’s name.

She additionally said that because de Havilland is still alive, she could have been asked about the accuracy of some of the matters now in dispute.

De Havilland’s suit, filed June 30, alleges false light invasion of privacy, infringement of the right of publicity and unjust enrichment. De Havilland’s 49 feature film roles included portraying Melanie Hamilton in “Gone with the Wind.”

Catherine Zeta-Jones portrayed de Havilland in the series, which starred Jessica Lange as Crawford and Susan Sarandon as Davis.

Crawford died in May 1977 and Davis in October 1989.

A two-time Academy Award winner for her lead roles in “To Each His Own” and “The Heiress,” de Havilland “has built a professional reputation for integrity, honesty, generosity, self-sacrifice and dignity,” according to her complaint. “A key reason for the public’s deep respect for Olivia de Havilland is that in her 80-plus year career, she has steadfastly refused to engage in typical Hollywood gossip about the relationships of other actors.”

–City News Service

Olivia De Havilland Defends Her Suit Against FX Over 'Feud'

By Steven Trader
(Law360, New York)

Actress Olivia de Havilland on Friday defended her lawsuit against FX Networks over the hit TV show “Feud: Bette and Joan,” telling a California state judge that including her without permission and putting false and disparaging words into her mouth is not protected speech.

In an opposition brief, the two-time Academy Award winner and “Gone With The Wind” star countered the network’s argument that her lawsuit should be struck under California’s anti-SLAPP statute, which is intended to protect against suits that threaten free speech in connection with a matter of public interest, also known as a strategic lawsuit against public participation.

Instead, the 101-year-old actress said she has a high probability of succeeding on her right to publicity and false light claims, given that FX Networks LLCadmittedly used her identity without permission to its own advantage and recklessly disregarded the truth by creating fake scenes and false statements that presented her character as a gossip in the docudrama, which details the rivalry between de Havilland’s close friend Bette Davis and Joan Crawford.

“Not only are the statements and conduct that 'Feud' attributes to de Havilland false, but they were highly offensive to her,” attorneys for the actress wrote on Friday. “The statements cast de Havilland in an untrue and ill-mannered fashion, which contradicts the professional reputation built over many decades of being a loyal friend and person of integrity and restraint. They are not minor or insignificant.”

The actress’ opposition brief was accompanied by declarations from Hollywood “insiders” and experts, including former senior MGM executive David Ladd, who told the court that obtaining consent from a well-known person for use of their name, identity or character is a serious matter on the standard pre-production checklist for a film, and failure to do so would be “out of the ordinary.”

Another expert, writer and producer Cort Casady, said in a declaration that attributing false statements and inaccurate endorsements to a person portrayed in a production without their permission amounted to “production malpractice.” In a third sworn statement, another expert estimated that failing to obtain de Havilland’s consent likely cost her between $1.38 and $2.1 million.

“As our experts set out in detail, there is no way FX defendants did not know that they were violating the law; instead they chose to ignore it and roll the dice,” Suzelle Smith, an attorney for de Havilland, said in a statement. “The facts, prior precedents and expert testimony overwhelmingly support the strength of Miss de Havilland’s case.”

Despite garnering a reputation for honesty and integrity over an 80-year career in front of the camera, de Havilland said in a complaint filed in June that no one at FX asked her for permission to be portrayed in “Feud,” which explores how the on-again, off-again relationship between Davis and Crawford played out during the shooting of their 1962 film “What Ever Happened to Baby Jane?”

According to de Havilland’s counsel, the show wrongfully makes her out to be a hypocrite who dealt in gossip in order to promote herself at the Academy Awards, placing her in a false light in order to boost ratings.

FX Networks and show creator Ryan Murphy battled back in August that her lawsuit fails under the anti-SLAPP law because the show’s portrayal of the actress isn’t defamatory and was, in fact, based on meticulous research, among other arguments. The network also argued that it did not need de Havilland’s permission to include her in the show because “Feud” is an expressive TV show that concerns matters of public interest.

Because the network portrayed her as if she was endorsing “Feud” and included her in fake scenes that never actually happened, while also capitalizing on her fame by making her portrayal as authentic as possible, the public interest defense fails, the actress argued.

“The grandson of Joan Crawford, Casey LaLonde, is reported to have worked with FX and Murphy to create an accurate portrait of her character,” Smith said in a statement. “Why in the world would FX obtain the backing and apparently compensate LaLonde for use of his deceased grandmother’s identity, and consciously ignore the rights of the very much alive, Olivia de Havilland, to protect her reputation from distortion?”

A dismissal motion hearing in the case, which has been fast-tracked because of de Havilland’s age, is set for Sept. 29.

Counsel for FX and Murphy did not immediately return a request for comment.

De Havilland is represented by Suzelle Smith, Don Howarth and Zoe E. Tremayne of Howarth & Smith.

FX and the production company are represented by Robert H. Rotstein, Aaron M. Wais and Emily F. Evitt of Mitchell Silberberg & Knupp LLP.

The suit is de Havilland v. FX Networks LLC et al., case number BC667011, in the Superior Court of the State of California, County of Los Angeles.

Olivia De Havilland, 101, Gets Suit Against FX Fast-Tracked

By Bonnie Eslinger
(Law360, Los Angeles)

A California judge granted “Gone with the Wind” actress Olivia de Havilland, 101, an early trial in her right of publicity suit against FX Networks LLC over the use of her name and identity in the series “Feud: Bette and Joan,” saying her advanced age necessitated the “fast track.”

Los Angeles Superior Court Judge Holly E. Kendig said on Wednesday that de Havilland's jury trial would start on Nov. 27.

“I can't image how one could not do that when the plaintiff is 101 years old,” the judge said.

In her July motion for trial preference, de Havilland told the court that her “unusually” advanced age brings with it a susceptibility to disease and recurring health issues that doesn’t ensure she’ll survive for much longer. Because her statutory right of publicity expires upon her death, de Havilland said she has a substantial interest in her case against FX Networks and its production company, Pacific 2.1 Entertainment Group Inc.

An attorney for the network, Robert Rotstein of Mitchell Silberberg & Knupp LLP, said his clients weren’t opposed to moving up the trial date, but he needed more than 11 weeks to prepare.

“The end of November is quite quick,” he said.

Judge Kendig said waiting until December put the trial smack in the middle of holidays.

“You don't want jurors here before Christmas,” the judge said. “You're not going to have jurors paying a single bit of attention.”

When Judge Kendig asked Rotstein why he needed more time, he said securing, preparing and deposing experts would not be quick or easy.

The judge suggested the network could have started that shortly after June, when de Havilland filed her suit.

An attorney for de Havilland, Suzelle Smith of Howarth & Smith, jumped in and told the court that her client’s opposition to FX’s motion to dismiss would be filed on Friday, and it would provide the network with the names of the experts that the actress was using along with some form of their reports, which would expedite their pretrial work.

“That will give them the opportunity — essentially a preview of our whole case,” Smith said. “They'll be able to anticipate everything we'll do at trial, so they’ll be way ahead of the game.”

During Wednesday’s proceeding, FX’s attorney also said the network would likely take up the court’s suggestion to mediate the matter if the judge ruled against its motion to toss the case under California’s anti-SLAPP statute, which bars suits that infringe free speech.

“It’s up to you,” the judge said. “You are on a fast track to trial, and if you do have the case revealed on Friday, then you are in much better shape than most ... So hopefully that’s good.”

After the hearing, which was attended by de Havilland’s daughter, Gisèle Galante, Smith told reporters that the centenarian might attend the trial, saying de Havilland was “very invested in this case."

Smith later told Law360 that if the actress defeats FX’s motion to dismiss and the network appealed, the Rules of Court allow an expedited appeal based on age.

In its motion, FX, the network behind “Feud,” which details the rivalry between de Havilland’s close friend Bette Davis and Joan Crawford, urged the court to strike the latest iteration of the two-time Academy Award winner’s suit challenging her portrayal in the popular docudrama, saying the state’s anti-SLAPP statute is intended to protect against suits like this that threaten free speech in connection with a matter of public interest.

“Because the anti-SLAPP statute applies to Feud, plaintiff must show a probability of prevailing on the merits of each of her claims,” FX said, contending that she can’t do so because the show’s portrayal of the actress isn’t defamatory and was, in fact, based on meticulous research, among other arguments.

Despite garnering a reputation for honesty and integrity over a nearly 80-year career in front of the camera, de Havilland said in a complaint filed in June that no one at FX asked her for permission to be portrayed in “Feud,” which explores how the on-again, off-again relationship between Davis and Crawford played out during the shooting of their 1962 film “What Ever Happened to Baby Jane?”

The suit claims that the show — which was created by Ryan Murphy, who is also behind popular shows like “Glee” and “American Horror Story” — isn’t protected by the First Amendment because the network put false words into her mouth in the interviews and documentary-style conversations portrayed in the script.

Shortly thereafter, de Havilland tweaked her complaint, accusing FX and production company Pacific 2.1 Entertainment of casting her in a false light, specifically taking issue with her character being shown giving an interview where she discusses Crawford and Davis; referring to her sister, actress Joan Fontaine, as a “bitch”; and joking about Frank Sinatra drinking alcohol in his dressing room, according to court filings.

The actress also claims that her inclusion in the show violates her right to publicity because the creators didn’t get her permission. But these allegations are no more availing, FX asserted, saying it didn’t need permission to include the “living legend” because “Feud” is an expressive TV show that concerns matters of public interest.

De Havilland’s request for an early trial falls under a California state law that allows people over 70 to request an early trial, according to her counsel.

De Havilland is represented by Suzelle Smith, Don Howarth and Zoe E. Tremayne of Howarth & Smith.

FX and the production company are represented by Robert H. Rotstein, Aaron M. Wais and Emily F. Evitt of Mitchell Silberberg & Knupp LLP.

The suit is de Havilland v. FX Networks LLC et al., case number BC667011, in the Superior Court of the State of California, County of Los Angeles.

Olivia de Havilland's 'Feud' Trial Expedited, Set for November

By Nardine Saad

Los Angeles Times, Los Angeles (September 13, 2017, 11:31 AM)

Two-time Oscar winner Olivia de Havilland will be getting her day in court this fall.

The 101-year-old Hollywood icon, who sued FX and Ryan Murphy over her depiction in the Emmy-nominated docuseries "Feud: Bette and Joan," has been granted the speedy trial she was seeking due to her advanced age.

De Havilland's jury trial will begin on Nov. 27 and is expected to last five to seven days, Los Angeles Superior Court Judge Holly Kendig ruled Wednesday at a hearing for the actress' motion to fast-track the lawsuit.

"I can't imagine not granting the motion based on the plaintiff being 101," Kendig said (via Deadline).

Though de Havilland, who lives in Paris, did not appear in court, her daughter Gisele Galante Chulack, an L.A. resident, attended the hearing instead, Deadline reported. It is unclear if the veteran actress will appear for later court dates.

The "Gone With the Wind" star sued FX and Murphy in June claiming that her depiction in "Feud" was unauthorized. De Havilland, who was played by Catherine Zeta-Jones in the miniseries about rival actresses Bette Davis and Joan Crawford, makes four major legal claims about violations of her common law and statutory rights of publicity, her right to privacy and unjust enrichment.

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

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

Catherine Zeta-Jones as Olivia de Havilland in "Feud." (Kurt Iswarienko / FX)Her attorney Suzelle M. Smith said de Havilland is "absolutely thrilled" that the trial has been expedited.

"Having this case resolved quickly is particularly meaningful to the plaintiff, who is defending the reputation of grace and integrity that she has built over the course of her 80-year career," Smith said in a statement following the hearing.

A rep for FX had no further statement regarding Wednesday's hearing.

In the lawsuit, de Havilland alleges that neither FX, Murphy nor producers at 20th Century Fox TV sought or obtained her permission to include her in the eight-episode anthology. De Havilland also took issue with her portrayal during an episode about the 1963 Oscars during which Zeta-Jones had ample screen time and relayed gossipy commentary about the players of the night. The veteran actress believes the episode cast her in a "false, hurtful and damaging light."

 Olivia de Havilland will have her day in court in November. (Genaro Molina / Los Angeles Times)

Olivia de Havilland will have her day in court in November. (Genaro Molina / Los Angeles Times)

On Wednesday, FX's attorney sought more trial time to track down third parties and experts because the issue "goes back decades." FX and Murphy's attorneys have argued that de Havilland's lawsuit impinges on the defendants' First Amendment right to "create expressive works about matters of public interest" and filed an anti-SLAPP motion to strike the lawsuit in its entirety last month.

They said that de Havilland's consent was not needed to include her in the series, 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.

That motion further complicates the situation because, if granted, the defendants would be awarded an automatic pre-trial appeal, which could push the trial date back further, the Hollywood Reporter said.

A hearing on the anti-SLAPP motion has been set for Sept. 29.

Olivia De Havilland Scores Win In ‘Feud’ Lawsuit; Trial To Start In November

By Dominic Patten
(Deadline, Los Angeles)

As FX and the producers of Feud: Bette and Joan learned today in court, time waits for no one, especially if 101-year old Olivia de Havilland wants a speedy trial for her lawsuit over how she was depicted in the Emmy nominated series.

Just days before the Ryan Murphy co-created Feud could see big wins at the 69th annual Primetime Emmy Awards on September 17 for stars Susan Sarandon and Jessica Lange, LA Superior Court Judge Holly Kendig unsurprisingly ruled Wednesday in the two time Oscar winner’s favor. An approximately five to seven-day trial has been set to start on November 27.

While the Paris-based de Havilland was not at the well-attended hearing today with her attorneys, her daughter and LA resident Gisele Galante Chulak was there. There was no real opposition from FX and the other defendants in the matter, though the parties differed over how long the trial should take. “Because this goes back decades, there are third parties we have to locate,” said FX attorney Robert Rotstein this morning seeking more trial time, looking at experts in genre and the like.

“I can’t image how one could not do that when the plaintiff is 101 years old,” said the Judge in court, though she expressed concerns about having a trial so close to the holidays. Judge Kendig set November 13 as the date of final exchange of documents between the parties, including jury instructions.

Seeking wide-ranging damages and a move to essentially shut down the FX anthology show with an injunction, de Havilland insisted in her initial June 30 lawsuit that her portrayal by Catherine Zeta-Jones in Feud damaged her “professional reputation for integrity, honesty, generosity, self-sacrifice and dignity.”

Having won twice at the Creative Emmys this past weekend, Feud is up for 10 nominations on September 17 out of its total of 18. With a trial now set, de Havilland’s legal team of Don Howarth, Suzelle Smith and Zoe Tremaye of L.A.’s Howarth & Smith will surely depose Murphy, FX execs, Oscar winner Zeta-Jones and others connected to the case. Undoubtedly, de Havilland herself will also sit for a deposition and come to town for the trial from her home in France.

First proposed back in late July, the motion to fast track the proceedings is based on the reality of de Havilland’s “unusually advanced age,” to quote the paperwork from her lawyers. Simply put, without being too indelicate and aware of how long such suits can grind away in the courts, the July 1, 1916-born icon wanted everything expedited so she would be alive to see Lady Justice in action. A statute in the state of California provides for parties in a legal matter to petition for a faster trial, for the obvious reasons.

In her jury seeking complaint of late June, the Hold Back the Dawn and The Heiress actress asserts that FX, Murphy and producers 20th Century Fox TV never even sought nor obtained her permission to depict her or use her name in their eight-episode series about Joan Crawford and Bette Davis. Among other issues, de Havilland’s lawsuit specifically targets the alleged backstage drama depicted in Feud‘s “And the Winner Is” fifth episode at the 1963 Oscars.

“At the 1963 Academy Awards, Zeta-Jones’ de Havilland comments to Bette Davis, portrayed by Susan Sarandon, that Oscar host Frank Sinatra must have drunk all the alcohol in the backstage lounge, because they cannot find any,” says the June 30 compliant. “All of this is untrue and casts Olivia de Havilland in false, hurtful and damaging light.”

Of course, FX and the other defendants repudiate de Havilland’s claims – respectfully.

“By alleging that Feud casts her in a false light and violates her right of publicity, Olivia de Havilland’s meritless lawsuit seeks to impinge on Defendants’ First Amendment right to create expressive works about matters of public interest,” asserts an extensive August 29 anti-SLAPP motion to strike from FX’s Mitchell Silberberg & Knupp LLP lawyers. “The Court should grant Defendants’ motion to strike in its entirety and award fees.”

A hearing on the anti-SLAPP motion is scheduled for September 29, also in Judge Kendig’s courtroom. If FX take a hit on that one, the defendant is expected to appeal quickly and seek an extended stay. To counter that, de Havilland’s side look sure to also seek an expedited treatment in the appellate court, as California law provides. The two sides could also mediate that part of the case, Howarth told the court Wednesday.

So, the Feud feud continues. See ya at the Emmys on Sunday.

Olivia de Havilland, at 101, Gears Up for a Fight In 'Feud' Court Battle

By Nardine Saad
(Los Angeles Times)

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

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)

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.

Screen Icon, 101, Urges Speedy Trial of Lawsuit Over TV Series

By Lila Seidman
(Los Angeles Daily Journal)

Weeks after filing a lawsuit against showrunner Ryan Murphy and FX Networks over her depiction in the Emmy- nominated series, "Feud: Bette and Joan," Golden Age screen icon Olivia de Havilland has asked the court to expedite the trial, citing her advanced age. De Havilland celebrated her 101st birthday on July 1.

In its first public statement on thecase, Fox 21 defended the show on Wednesday, calling it "meticulously researched."

"By the logic of Ms. de Havilland's attorneys, no producer would be able to tell any stories about famous people, living or dead, without their consent," the statement said.

De Havilland's attorneys filed a request with Los Angeles County Superior Court Judge Holly Kendig on Tuesday, asking that the trial be set in November or no later than 120 days after her motion is granted. The motion is set for a hearing on Sept. 13, days before the Prirnetime Emmy Awards, where the anthology series about the behind-the-scenes rivalry between Joan Crawford and Bette Davis is nominated for 18 awards.

The motion relies on a statute that allows people over 70 to fast-track the litigation process.

"[It's] a matter of common sense. When you reach 90, much less 100- plus, you're approaching the area where your longevity cannot be counted on," said de Havilland's attorney Suzelle Smith of Los Angeles- based Howarth & Smith. "I think this will be a pretty straightforward case for the judge." Don Howarth and Zoe Tremayne of the same firm are also on the plaintiff's team.

In the suit filed June 30, the "Gone with the Wind" star alleges unauthorized commercial use of her name and identity in the show, which details of a feud between Crawford and Davis. De Havilland v. FX Networks LLC, BC667011 (L.A. Super Ct., filed June 30, 2017).

According to two-time Oscar winner de Havilland, her character in the show, played by Catherine Zeta-Jones, is portrayed as gossiping about the title characters and disparaging her sister, actress Joan Fontaine.

The complaint alleges that statements attributed to de Havilland are false and "have caused her economic, reputatioμal, and emotional damages, including distress, anxiety and humiliation." She is seeking unspecified damages and an injunction against FX to prevent it from using her name and likeness. Smith said de Havilland was not consulted for the project, despite being the only living person prominently depicted.

Olivia de Havilland Wants to Take FX to Trial Before Her 102nd Birthday

By Ashley Cullins
(The Hollywood Reporter, Los Angeles)

This feud could reach trial in the next four months.

FX's biggest event this fall may not be the debut of American Horror Story: Cult — as Olivia de Havilland is asking the court to expedite her lawsuit against the network over her portrayal in Feud: Bette and Joan.

The 101-year-old actress says Ryan Murphy's series makes her look like a gossip who exploited the personal lives of others to further her own career. She's the only living person portrayed in the show, yet she wasn't consulted, and she's suing for infringement of common law right of publicity, invasion of privacy and unjust enrichment.

In a Tuesday filing, she asks L.A. Superior Court judge Holly Kendig to set a trial for November, relying on a California statute that essentially allows parties who are 70 or older to speed up litigation.

"This is the kind of case for which the statute was passed," said de Havilland's attorney Suzelle Smith in a statement. "There is a substantial risk that without a trial preference, Miss de Havilland will be prejudiced in not obtaining the benefits of the litigation. She is eager to have this case fully resolved well in advance of her 102nd birthday.”

Even considering de Havilland's three-digit age, this motion is unusually quick. Attorneys for FX haven't even filed an appearance in the matter. Also worth noting, the case was originally before judge Robert Hess, but Smith filed a peremptory challenge and it was reassigned last week. The exact nature of that conflict is unclear.

July 26, 9:40 a.m. Updated with a statement from Feud producers.

Olivia de Havilland Sues FX Over Feud: Bette and Joan

(BBC)

 Olivia de Havilland filed papers on Friday, two days before her 101st birthday

Olivia de Havilland filed papers on Friday, two days before her 101st birthday

Oscar-winning actress Olivia de Havilland is suing the makers of a television show which she says portrayed her as a "petty gossip".

De Havilland, who turns 101 on Saturday, filed a lawsuit against FX Networks and producer Ryan Murphy over the miniseries Feud: Bette and Joan.

The drama explored the bad blood between the Hollywood screen legends Joan Crawford and Bette Davis.

The actress, who appeared in 50 films, was played by Catherine Zeta-Jones.

In papers filed at the Los Angeles Superior Court, de Havilland - who was made a dame in the Queen's birthday honours in June - said the show's characterisation of her damaged her "professional reputation for integrity, honesty, generosity, self-sacrifice and dignity".

The Gone With The Wind star is asking a jury to consider the emotional distress caused by the show, as well as potential financial losses and the profits made from using her identity.

She last appeared on the big screen in 1979's The Fifth Musketeer.

 De Havilland says the show caused her emotional distress

De Havilland says the show caused her emotional distress

The Paris-based actress' lawyers told The Los Angeles Times: "The FX series puts words in the mouth of Miss de Havilland which are inaccurate and contrary to the reputation she has built over an 80-year professional life, specifically refusing to engage in gossip mongering about other actors in order to generate media attention for herself."

De Havilland - the only person depicted in the series who is still alive - also said she was not consulted.

But in an interview with the Hollywood Reporter earlier this year, Mr Murphy said he did not contact de Havilland because he "didn't want to be disrespectful and ask her, 'Did this happen? Did that happen? What was your take on that?'"

The eight-part series, which is a contender for an Emmy nomination next month, is due to air in the UK on BBC Two later this year.

Famed Hollywood Actress Sues Over ‘Feud’ Depiction

By Lynn Elber
(AP News, Los Angeles)

Hollywood great Olivia de Havilland has launched her own sequel to the TV series “Feud” — a lawsuit.

The double Oscar-winning actress filed suit Friday against FX Networks and producer Ryan Murphy’s company, alleging the drama inaccurately depicts her as a gossipmonger and is an invasion of privacy.

The suit was filed in Los Angeles on Friday — one day before de Havilland turns 101. The actress, whose credits include the role of Melanie Hamilton in “Gone with the Wind,” lives in Paris.

De Havilland’s suit alleges that “Feud: Bette and Joan,” about the testy relationship of Bette Davis and Joan Crawford, used her name and identity without permission or compensation.

FX Networks declined comment Friday. Representatives for Murphy, who co-created the hit series “American Horror Story” and “Glee,” didn’t immediately respond to a request for comment.

Catherine Zeta-Jones played De Havilland in the series, which aired earlier this year. The anthology series’ next announced chapter is about the ill-fated marriage of Britain’s Prince Charles and Princess Diana.

While De Havilland is “beloved and respected by her peers” and has a reputation for integrity and honesty, the series depicts her as “a hypocrite, selling gossip in order to promote herself” at the Academy Awards, the suit says.

This is false, the suit against FX and Ryan Murphy Productions contends.

“She has refused to use what she knew about the private or public lives of other actors (which was a considerable amount) to promote her own press attention and celebrity status,” a valuable aspect of her character, the suit says.

It argues that putting “false statements into a living person’s mouth and damaging their reputation is not protected by the First Amendment because the work is cloaked as fiction.

Suzelle Smith, an attorney for de Havilland, said in a statement that FX was “wrong to ignore Miss de Havilland and proceed without her permission for its own profit.”

The actress believes FX’s actions raise important principles that affect other celebrities, Smith’s statement said.

The suit seeks unspecified compensatory and punitive damages for emotional distress, damage to her reputation and past and future economic losses, as well as an injunction barring the defendants from using her name or image in the series or otherwise.

De Havilland won Oscars for 1946′s “To Each His Own” and 1949′s “The Heiress,” and was nominated for three other films, including “Gone with the Wind.” Her later projects included TV’s “Roots: The Next Generations” and “North and South, Book II.”

The statement from her lawyers, Smith and Don Howarth, said de Havilland is “no stranger to controversy with the powerful Hollywood production industry.”

In 1943, she sued Warner Bros. over her contract.

The “landmark decision” in her legal victory set the outside limit of a studio-player contract at seven years, including suspensions, according to Ephraim Katz’s “The Film Encyclopedia.”

Olivia de Havilland Sues FX Over Unauthorized Use of Her Identity In 'Feud: Bette and Joan'

By Nardine Saad (Los Angeles Times)

la-et-entertainment-news-updates-june-olivia-de-havilland-sues-fx-over-1498845076.jpg

It's "Feud: Olivia and FX."

On the eve of her 101st birthday, two-time Oscar winner Olivia de Havilland has announced she is suing FX and producer Ryan Murphy over the unauthorized use of her identity in "Feud: Bette and Joan," according to a statement released Friday morning.

The miniseries about the longtime rivalry between actresses Bette Davis and Joan Crawford featured Catherine Zeta-Jones as de Havilland — the "Gone With the Wind" star who was a confidant of Davis' and a commentator throughout the eight-episode show.

De Havilland, who resides in France and turns 101 on Saturday, filed the lawsuit in Los Angeles Superior Court against FX Networks, LLC and Ryan Murphy Productions "based on the unauthorized commercial use of Dame Olivia's name and identity in the FX hit series," according to her attorneys, Suzelle M. Smith and Don Howarth of Howarth & Smith, noting that all the other real-life players who are featured in the series are dead.

 Catherine Zeta-Jones as actress Olivia de Havilland in FX's "Feud: Bette and Joan." (Kurt Iswarienko / FX)

Catherine Zeta-Jones as actress Olivia de Havilland in FX's "Feud: Bette and Joan." (Kurt Iswarienko / FX)

Speaking on a panel at the Television Critics Assn.'s winter press tour, Zeta-Jones was asked whether she had ever met de Havilland.

"No, I didn't, unfortunately. I was going to try and get to see her. I was in the south of France this last summer. Then, unfortunately, there was the horrible tragedy that happened there in Nice, so I didn't get the chance to," Zeta-Jones said in January.

"Miss de Havilland was not asked by FX for permission to use her name and identity and was not compensated for such use," her attorneys said in a statement to The Times. "Further, the FX series puts words in the mouth of Miss de Havilland which are inaccurate and contrary to the reputation she has built over an 80-year professional life, specifically refusing to engage in gossip mongering about other actors in order to generate media attention for herself."

The suit accuses FX and its partners of appropriating de Havilland's name and identity and placing her in "a false light to sensationalize the series and to promote their own businesses" while ignoring her interests entirely.

 (Damon Winter / Los Angeles Times)

(Damon Winter / Los Angeles Times)

"A living celebrity has the right to protect her name and identity from unauthorized, false, commercial exploitation under both common law and the specific 'right to publicity' statute in California," Smith said, asserting that, "FX was wrong to ignore Miss de Havilland and proceed without her permission for its own profit."

Her team plans to file a motion seeking an expedited trial date because of de Havilland's age.

De Havilland is no stranger to legal proceedings. In 1943, she filed a landmark lawsuit against Warner Bros. that resulted in the collapse of the binding long-term contract system and put the de Havilland Law on the books.

FX declined to comment on the lawsuit and Murphy's team did not immediately respond to The Times' request for comment Friday.

Update, 11:45 a.m.: This story has been updated to include FX's response.

The Real Olivia de Havilland Sues FX Over Her Depiction In Feud

By Sam Barsanti
(A.V. Club)

One of the biggest dangers in making a TV show about actual Hollywood drama is that the people involved in Hollywood drama are often very concerned with how they are perceived, as Feud creator Ryan Murphy is now learning. According to The Hollywood Reporter, actress Olivia De Havilland is suing FX and Murphy’s Ryan Murphy Productions over the way she was depicted on the show, explaining that it put “false words” into her mouth as part of a “fake interview that did not occur and would not have occurred.”

Catherine Zeta-Jones played De Havilland on Feud, and the lawsuit says that she was depicted as “a hypocrite who sold gossip to promote herself.” This is apparently very upsetting for the real De Havilland, who has prided herself on the “reputation for integrity and dignity” that she built by “refraining from gossip and other unkind, ill-mannered behavior.” She’s also upset about a line from the show where Zeta-Jones’ De Havilland referred to her sister as a “bitch,” which “stands in stark contrast with Olivia de Havilland’s reputation for good manners, class, and kindness.”

De Havilland is the only person who experienced the events from the show and is still alive, but THR says Murphy purposefully chose not to contact her about the series because he didn’t want to “intrude.” Earlier this year, though, THR contacted De Havilland about the show, and she basically responded by saying that she hadn’t seen Feud and that she didn’t care about the Bette Davis/Joan Crawford thing anymore after all these years anyway. She has presumably seen the show since then, and it’s starting to look like Murphy probably should’ve tried reaching out to her.

The lawsuit accuses FX of “infringement of common law right of publicity, invasion of privacy, and unjust enrichment,” and De Havilland is asking for damages, profits from the series, and an injunction to prevent FX from using her name and likeness in the future.