Oral arguments were heard today before the California Court of Appeal in the ongoing feud between Olivia de Havilland and the producers of the FX series Feud: Bette and Joan, whom she accuses of presenting her in a “false, hurtful and damaging light.” If the questions asked by the three-judge panel today were any indication, however, the case may not stand much chance of proceeding to trial.
The case, heard today at USC, pits de Havilland’s right of publicity – her right to control the commercial use of her identity – versus the producers’ First Amendment right to tell a fictionalized story about real people. At issue is just how fictionalized a portrayal can be before it crosses the line into defamation. The case has far-reaching First Amendment implications.
But first de Havilland must get the green light from the judges to proceed to trial.
“If this case can’t go forward,” argued her attorney Suzelle Smith, “you won’t have a celebrity who can’t control their identity.” This case, she told the judges, is “not one of censorship,” but of holding filmmakers to the honest and factual depiction of the people and events they portray.
“How is that not censorship, if the person who is being depicted gets to make the call?” Judge Lee Smalley Edmon asked. It was the question at the heart of the case, and one that Smith struggled to answer.
The legendary 101-year-old actress claims Feud damaged her reputation by portraying her as a mean-spirited gossip who referred to Joan Fontaine as her “bitch sister,” and Frank Sinatra as a drunk who “must have drunk all the alcohol in the backstage lounge” during the 1963 Academy Awards he hosted.
“That kind of vulgarity is not language that I use,” the de Havilland said in a deposition last summer. Both sides have stipulated that de Havilland had once called her sister a “dragon lady,” but Smith argued she never called her a “bitch.”
Juggle Halim Dhacdina seemed to view that as a distinction without much of a difference. “Is there something substantially different between calling someone a bitch and a dragon lady?” he asked Smith.
“Bitch is a vulgarity,” she answered. “In my household, if you say bitch, you get your mouth washed out.”
As for Sinatra, Smith said her client never talked about anyone that way, and in fact, never said that about him. And anything harmful that authors make up about someone that they know is not true, she said, is defamatory.
The judges didn’t seem to buy that argument either. Referring to the scene in which the de Havilland character called her sister a bitch, Judge Anne Gerton asked: “That would have damaged Fontaine’s career?”
“And de Havilland’s,” Smith answered.
During Smith’s presentation, the judges peppered Smith with questions. “What if a story is fictionalized but not defamatory,” Gerton asked. “If I make a movie about O.J. Simpson, do I have to obtain Judge (Lance) Ito’s permission?”
“Not if you do a factual, accurate depiction that’s not defamatory,” Smith answered.
FX attorney Kelly Klaus told the court the there was “no malice” in the series’ depiction of de Havilland, and that she was, in fact, presented “heroically” (as played by Catherine Zeta-Jones) as a woman loyal to her friends and who fought against Hollywood’s glass ceiling.
It was never the writer’s or the producers’ intention to defame her or present her in a false light, he said, noting that this was a docu-drama, not a documentary, and that the courts have long understood the difference and protected the First Amendment rights of filmmakers to fictionalize elements of their stories.
De Havilland, he told the court, “was not presented as a vulgarian, but as a human.”
By contrast, the judges asked Klaus only one or two questions about case law, and after his rebuttal, had no questions for him at all.
FX attempted to have the suit dismissed under California’s anti-SLAPP statute, which allows judges to throw out lawsuits that might chill free speech. In September, however, a Los Angeles Superior Court judge allowed the case to proceed on grounds that de Havilland’s attorneys had demonstrated that they could very well win the case if it went to trial.
The MPAA and Netflix then entered the fray, arguing in a friend of the court brief that the trial court’s ruling could set a dangerous precedent that would jeopardize any film or TV show that seeks to dramatize real people or events.
“If creators of expressive works that dramatize stories about real people can face actionable right of publicity claims unless they obtain the consent of everyone relevant to the story,” they argued, “fictionalized stories about real people will be stifled by censorship attempts launched by our most popular, powerful, and controversial celebrities and politicians—and limited to depicting only their (likely highly sanitized) – version of events.”