Proving that if you pay your dues literally, your pals will show up to have your back, the Motion Picture Association of America and Netflix today warned of “the chilling fear of litigation” as they filed court documents supporting FX and Ryan Murphy in their legal battle with Olivia De Havilland over the Oscar winning icon’s depiction in the Feud: Bette and Joan.
“The type of claims pursued by a celebrity like Olivia de Havilland here deserve especially heightened scrutiny because docudramas, biopics and historical dramas—which by design do not portray individuals or events literally or with obedience to historical fact—often depict real people who may not like, and may even be offended or embarrassed by, how they are portrayed,” says the introduction to the proposed amicus curiae brief that the studio backed lobby group and the streaming service filed for consideration on Thursday in the California’s court of appeal. “Yet a plaintiff’s subjective dissatisfaction with her portrayal is not enough to support an actionable false light claim. An actionable portrayal must be highly offensive to a reasonable person,” the paperwork complied by Mark Kressel and Frederic Cohen of Burbank’s Horvitz & Levy added (read it here).
“In deciding Ms. de Havilland’s case, the MPAA and Netflix urge this court to reaffirm that, within these generous boundaries, the First Amendment allows producers to tell fictionalized stories about real people.”
This intervention of sorts comes as the John Landgraf led cabler and Murphy took the matter to the Appeals Court after LA Superior Court judge Holly Kendig in September spurned the soon to be Disney-owned FX’s desire to have de Havilland’s suit curb stomped under anti-SLAPP and First Amendment grounds.
On June 30 last year, one day before her 101st birthday, the Hold Back the Dawn and Gone with the Wind actress filed a jury trial seeking complaint that claimed the portrayal of her by Catherine Zeta-Jones in the anthology series damaged her “professional reputation for integrity, honesty, generosity, self-sacrifice and dignity.” As she did in subsequent amended paperwork, de Havilland has sought sweeping damages and unplugging the Susan Sarandon and Jessica Lange led eight-episode show with an injunction.
De Havilland has declared that FX, Murphy or producers 20th Century Fox TV never sought nor obtained her permission to depict her or use her name in the series about Joan Crawford and Bette Davis. The icon’s lawsuit also spotlights the backstage drama at the 1963 Oscars that made up the pivotal episode titled “And the Winner Is” with distain. “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,” the original compliant of late says. “All of this is untrue and casts Olivia de Havilland in false, hurtful and damaging light.”
Obviously. FX and Murphy fought right back on a various fronts. With an expedited November starting trial granted because of Paris-based de Havilland’s advance age, they made sure to take the matter up the legal food chain in October when they came up short in LA Superior Court – a move that hit the pause button on any trial anytime soon.
“Because she pleads defamation by implication, Plaintiff must show that the challenged narrative device and statements constitute assertions of provable fact about her (they do not); that they materially distort things Plaintiff did or said in her public life (they do not); that reasonable viewers would interpret the statements to carry the meaning she alleges and be highly offended by that meaning (neither of which is the case),” FX and Pacific 2.1 Entertainment Group’s Muller, Tolles & Olson LLP attorneys proclaimed in their reply brief of January 11, “and, critically, not only that Defendants knew of or recklessly disregarded what Plaintiff calls the falsehood (which Defendants did not do), but that Defendants intended the words to carry a defamatory rather than an innocent meaning,”
The reply came after de Havilland’s Howarth & Smith lawyers essentially mocked the initial brief late last year.
“The trial court allowed Ms. de Havilland’s right of publicity claims to proceed because the defendants knowingly used her persona in a docudrama without consent or compensation, and thus did not give Ms. de Havilland editorial control of her depiction,” the MPAA and Netflix’s lawyers emphasized in today’s brief before the appeal court. “The trial court’s analysis puts creators of docudramas and other fictionalized works about or inspired by real people or events in an untenable Catch-22: the court reasoned that any docudrama that portrays its subjects too realistically is actionable for violating their right of publicity, yet any docudrama that portrays its subjects with anything less than absolute, literal accuracy is actionable under false light,” they go on to say. “This exacerbates the chilling fear of litigation that would be created by affirming the trial court’s decision.”
Though not formally a member of the MPAA, Netflix has thrown in their lot with the Charles Rivkin run studio valet service in recent years on a variety of matters such as piracy. In the case of Feud, the Reed Hastings run service certainly has skin in this game AKA can you say, oh I don’t know, Narcos?
Which is why they and the MPAA rolled themselves in the Constitution today like beans and beef in a tortilla. “The MPAA and Netflix cannot overstate the serious implications that the trial court’s rulings would have for the creation of fictionalized motion pictures and other expressive works about or inspired by real people or events—works, like Feud and countless others, that are vital to public discourse,” the duo stated in a thrust for free speech.
As for speech before the Appeal Court, oral arguments have not been scheduled yet but you can be damn sure that’s going to be a feud worth getting a ticket to see- especially if de Havilland herself shows up.