Olivia de Havilland is on the verge of a big trial in her lawsuit against FX over the way she was depicted in the Ryan Murphy series Feud: Bette and Joan. On Friday, a judge said during a hearing that the network won't be allowed to strike her complaint on First Amendment grounds.
The 101-year-old actress claims she has built a reputation for integrity and dignity, and that Feud non-consensually featured her as a character played by Catherine Zeta-Jones in the series about Bette Davis and Joan Crawford. Claiming violation of her privacy and publicity rights, de Havilland objected to the alleged impression conveyed in the show that she was a hypocrite who sold gossip to promote herself.
In response to the lawsuit, the defendants looked to defeat her claims under California's SLAPP law, which provides recourse to those who are dragged into frivolous suits arising from First Amendment activity on matters of public interest.
Although FX was able to convince Los Angeles Superior Court Judge Holly Kendig that the actress' complaint did arise from free speech, the network has run into trouble on the SLAPP's second prong — whether de Havilland has a likelihood of prevailing.
FX put forward evidence to argue Feud does not falsely portray her, and regardless, contended that the First Amendment protects using someone's name or likeness in expressive speech like a motion picture or television program. There's many cases for support. For example, a few years ago, former Panama dictator Manuel Noriega was SLAPP'd out of court in a case against Activision Blizzard for featuring him in its best-selling game Call of Duty: Black Ops II. And last year, the 9th Circuit Court of Appeals ruled in a case involving The Hurt Locker that the First Amendment protects biographical stories even if fictionalized.
De Havilland, who decades ago helped bring down the old studio system in Hollywood with a pathbreaking case about her contract with Warner Bros., is certainly more beloved than Noriega and more famous than the Iraqi war veteran who sued over The Hurt Locker. Her attorney argued there's no case law to support the notion that "having some truthful statements in a published medium allows commercial exploitation of a celebrity through unconsented knowing or recklessly false representations."
The judge is giving her arguments the advantage in what may come as a surprise to many studios. The decision could delight SAG-AFTRA, the actors guild that has intervened in many cases in the past to stick up for publicity rights, while also causing concern among others in entertainment and media who often use a celebrity's name and likeness in both fictional and non-fictional works. Friday's startling decision is reminiscent in some ways how Aretha Franklin was able to obtain an injunction to stop a concert documentary from playing at Telluride or how a convicted murderer's lawsuit over a Lifetime biopic was revived earlier this year by a New York appeals court.
Kendig concluded that de Havilland has showed a minimal probability of prevailing on the merits of her claims.
To be clear, the actress is suing over her publicity rights (alleging her consent is required for exploitation) as well as saying that Feud puts her in a false light (a hybrid claim of defamation and privacy).
In regards to publicity rights, FX's constitutional arguments didn't work, and at trial, the network may attempt to convince a jury that their use of the actress's likeness is transformative.
Much of the conversation Friday, though, centered on the false light claim, and specifically, malice, an element that de Havilland needs to show as a public figure. Kendig noted that the standard requires de Havilland to demonstrate that FX either knew its information was false or acted with reckless disregard for the truth. While the network contends it did its homework, Kendig wasn't convinced. "Remember Ms. de Havilland was alive," she said. "She could've answered questions."
FX attorney Robert Rotstein argued that de Havilland's case boils down to defamation by implication and she has to prove "deliberate intent."
Suzelle Smith, who represents de Havilland, didn't take much time with her rebuttal. "We're not defeated just because they say 'we didn't mean to do it,'" she argued. Ultimately, Kendig wasn't swayed from her tentative findings.
Because of de Havilland's advanced age, the judge has fast-tracked the trial in this case to late November, although California's SLAPP law provides an automatic right for appeal before any trial takes place. That could present some difficulties as the two sides gear up for the next stage in this feud. The ruling now paves the way for the parties to scramble to conduct discovery in advance of any trial. The defendants have indicated they wish to depose de Havilland, who is currently residing in France. Her attorneys plan to depose Murphy, Zeta-Jones and others involved with Feud next month.