The California Court of Appeal will hear arguments today over whether Olivia de Havilland can proceed with her lawsuit against the FX Network and Ryan Murphy Productions over her portrayal in the FX series Feud, depicting the rivalry between Bette Davis and Joan Crawford.
The Oscar-winning actress objected to her portrayal by actress Catherine Zeta-Jones, claiming her name and likeness were used to promote the docudrama without her permission and that the series damaged her reputation by casting her in a false light as a hypocrite “selling gossip in order to promote herself at the Academy Awards, criticizing fellow actors, using vulgarity and cheap language.” She took particular issue with Zeta-Jones’ de Havilland referring to Joan Fontaine as her “bitch sister.”
“That kind of vulgarity is not language that I use,” the 101-year-old actress said in a deposition taken last summer in Paris.
The network attempted last August to have the claim dismissed under California’s anti-SLAPP statute, which throws out lawsuits that would chill free speech. One month later, Los Angeles Superior Court Judge Holly Kendig allowed the case to proceed — saying de Havilland’s attorneys demonstrated she might well succeed in winning the case.
That decision set off alarms in Hollywood, which feared the case could set a dangerous precedent that would jeopardize any film, TV show or other creative work that seeks to dramatize real people or events.
The MPAA joined with Netflix joined together in a friend of the court brief to argue that the trial court’s ruling would allow a celebrity’s publicity rights — which court have limited to advertising and merchandising — to trump free expression. That marks a radical departure from decades of case law, they argued, and would leave filmmakers, writers and producers exposed to liability if they depart, even slightly, from the literal facts of the historical record and failed to obtain the permission of their subjects.
That’s a chilling precedent for less-than-flattering portrayals of actual people, like Allison Janey’s Oscar-winning performance in the role of LaVonda Golden, the mother of figure skater Tonya Harding, in I, Tonya.
“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, 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,” the MPAA and Netflix wrote in a brief.
The Court of Appeal will review that ruling today in a hearing on the campus of the University of Southern California.