Actress Olivia de Havilland is a 101 year old living legend now residing in Paris. FX Network is the creator and producer of the television miniseries Feud: Bette and Joan, a docudrama about film stars and close friends Bette Davis and Joan Crawford.
In March 2017, FX began airing the 8-part docudrama portraying the rivalry and friendship between actresses Joan Crawford and Bette Davis. As the Second District Court of Appeal wrote, “The central theme of the program is that powerful men in Hollywood pressured and manipulated women in the industry into very public feuds with one another to advance the economic interests of those men in the institutions they headed. A secondary theme – as timely now as it was in the 1960s – is the poor treatment by Hollywood of actresses as they age.”
Where have we heard that before?
The de Havilland character played by Catherine Zeta-Jones, to which de Havilland was upset, is portrayed as beautiful, glamorous, self-assured, and considerably ahead of her time on her views on equality and respect for women in Hollywood. Feud was nominated for 18 Emmy Awards. Sounds like a TV series we should all see.
DE HAVILLAND SUES FX
No good deed goes unpunished, so you guessed it, right after the eight-part docudrama began airing, de Havilland sued claiming misappropriation of likeness, violation of rights of publicity and invasion of privacy, claiming emotional distress and seeking profits gained from the unauthorized use of her name. De Havilland also sought a permanent injunction for the broadcast of the series.
Interestingly, at least to me, the trial court in Los Angeles ruled in favor of Olivia de Havilland. The case was appealed and after dozens of amicus curia briefs were filed asking to have the trial court decision overturned, the Second District California Court of Appeal issued its ruling. The cast of Feud is impressive, Jack Warner of Warner Brothers is played by Stanley Tucci, Joan Crawford by Jessica Lange, Bette Davis’ daughter is played by Kiernan Shipka, Hedda Hopper is played by Judy Davis, Bette Davis by Susan Sarandon, and as noted Catherine Zeta-Jones takes the role of Oliva de Havilland.
FAMOUS CELEBRITY CASES
The Court of Appeal discussed dozens of lawsuits involving Hollywood celebrities who claimed their likeness had been used for profit.
For example the U.S. Army sergeant who had served in Iraq and apparently was the basis for the motion picture The Hurt Locker sued unsuccessfully, with the court concluding that “The Hurt Locker is not speech proposing a commercial transaction.” Rudolph Valentino’s heirs unsuccessfully sued over a “fictionalized” version of the life of the actor.
First Amendment rights protected filmmakers’ use of the name and likeness of the Black Panther Party’s – co-founder, which integrated fiction with real life events.
The heirs of the Three Stooges successfully sued an artist who had made realistic drawings of the Three Stooges, put them on t-shirts and sold them. The court ruled that the celebrities’ heirs had a right to the profits from merchandizing the Three Stooges images.
The Court of Appeal ultimately determined that the positive depiction of de Havilland was consistent with her personality. De Havilland’s wit and playfulness were exhibited in her book “Every Frenchman Has One,” published in 1961 and reissued in 2016, where she devoted an entire chapter on the habit of French men urinating on the side of the road in public. Nothing wrong with that.
The Court explained how a “transformative work” that portrays a real person in an expressive, creative, even fictitious way gives the writer more protection under the First Amendment than a pure realistic portrayal.
The Court also said celebrities do not have the right to control their image by censoring disagreeable portrayals.
As the Court wrote, Feud’s depiction of de Havilland is not highly offensive; and de Havilland can’t prove actual malice by clear and convincing evidence. The First Amendment prevails; de Havilland loses.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or www.portersimon.com.
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