FX Networks Looks to SLAPP 101-Year-Old Actress Olivia de Havilland's 'Feud' Lawsuit

Using her name and likeness in a dramatized account of history is constitutionally protected expression, argues the defendant.
Left, Photofest; Right, courtesy of FX
Olivia de Havilland (left), Catherina Zeta Jones in 'Feud'

In Olivia de Havilland's heyday, there wasn't a law that allowed defendants to make an early challenge to frivolous use of the courts to censor. But California now has an anti-SLAPP statute, and FX Networks is attempting to use it to strike the 101-year-old actress' claims that her publicity and privacy rights were violated through her depiction in Feud: Bette and Joan.

De Havilland was portrayed by Catherine Zeta-Jones in the series, and the plaintiff wasn't consulted. The legendary actress didn't like what she saw. In a complaint, de Havilland alleges she has built a reputation for integrity and dignity, but that the series creates the impression that she was a hypocrite who sold gossip to promote herself. Given her advanced age, de Havilland is seeking a trial as early as November, but California's SLAPP law could get in the way. Even if FX loses the motion, the statute provides an automatic right of appeal.

But will FX lose?

Based on precedent, FX stands a good shot at convincing Los Angeles Superior Court judge Holly Kendig that the lawsuit arises from acts in furtherance of the right of free speech in connection with an issue of public interest. De Havilland could attempt to win on the first prong of the SLAPP statute by attempting to argue that even celebrities are afforded some privacy and that something that happened a half-century ago can hardly be a public matter.

If the judge reaches the next stage of analysis under the SLAPP statute, de Havilland will need to convince the court she has a likelihood of prevailing before the case moves any further.

In a memorandum filed Tuesday, FX and Pacific 2.1 Entertainment Group argue why the actress can't prevail.

Responding to her false light claims — a hybrid of privacy and defamation — FX says Feud does not falsely portray her. 

"Plaintiff first complains that Feud depicts her speaking about other celebrities in a public interview," states the brief. "Yet, Plaintiff has given numerous television, video, and print interviews and otherwise publicly shared many stories about Hollywood and other actors over the years, some admiring and others critical. In 1977 — in a format much like Feud's dramatized 1978 interview — Plaintiff appeared with other actresses on Dinah! and discussed her personal life and Hollywood. Plaintiff also actually attended the 1978 Academy Awards as a presenter. As recently as 2016, Plaintiff gave a lengthy interview to the Associated Press touching on many topics, including her sister. So, while Plaintiff may not have specifically given an interview at the 1978 Academy Awards, the 'gist' and 'sting' of the charge — that Plaintiff has contributed to the public discourse on Hollywood and its celebrities, including at or near the time of the 1978 Awards — is substantially true."

FX also stands by the truth of other scenes in the show, including the de Havilland character's reference to her sister as a "bitch" and a quip about Frank Sinatra. Regardless, the defendant says Feud does not purport to be a documentary, and that reasonable viewers will understand that some elements are dramatic interpretations of historical events and private conversations. And if a judge doesn't buy the statements are susceptible to defamatory meaning, FX falls back on the lack of demonstrated malice.

As for the publicity rights claims, FX points to the constitutional protections for using someone's name or likeness in expressive speech like a motion picture or television program. To hold otherwise would block self-expression, argue FX's attorneys at Mitchell Silberberg, led by attorney Robert Rotstein.

Besides warnings of censorship, FX also paints Feud as transformative speech, saying de Havilland is admitting as much by claiming that scenes were falsely dramatized.

Plus, there's more.

"Here, the economic value of Feud clearly does not primarily derive from Plaintiff's fame," states the anti-SLAPP brief. "Rather, the series derives its primary value from the critically acclaimed writing and directing; the fame and performances of the series' Emmy-nominated stars, [Jessica] Lange and [Susan] Sarandon, along with the rest of the prestigious cast; the series' production value; and the work's subject matter. In contrast, the de Havilland character appears sporadically in Feud. Moreover, Zeta-Jones is not billed in the opening credits as a recurring cast member but in the end credits as a guest star, and she was not a primary feature of the show's marketing campaign. Because the value of Feud comes principally from sources other than Plaintiff's fame, her right of publicity claims fail."

In reaction to the motion, de Havilland's attorney Suzelle Smith put out a statement that FX "shows their continuing disrespect for her and for California law. In an effort to discredit her, they attempt to throw mud on a great lady, resorting to old outtakes from YouTube, where she criticizes herself for making mistakes in delivering her lines."

Smith also litigates in the press by arguing that FX has made "key admissions" like no evidence supporting various scenes to the fact that FX didn't get her consent to use her name or character. According to Smith, the latter is required by law (although no journalist covering this saga has likely gotten de Havilland's consent to use her name, either). Smith adds, "If Defendants' view of the law were to prevail, then the California statute giving a celebrity the exclusive right to control and profit from her name and identity, and protect her reputation, would be meaningless."

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