By Bonnie Eslinger
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.