FX Wins Appellate Court 'Feud' With Olivia de Havilland

Olivia de Havilland and Catherina Zeta Jones Feud Still - Split - Photofest - H 2017
Left, Photofest; Right, courtesy of FX

In a major win for docudrama creators, a California appeals court on Monday ruled that Olivia de Havilland's lawsuit against Ryan Murphy and FX should have been tossed because it's precluded by the First Amendment.

The 101-year-old actress sued in June, claiming the series Feud: Bette and Joan makes her seem like a vulgar hypocrite and gossip. Defendants asked the court to strike her claims under California's anti-SLAPP law, which aims to bring an early end to frivolous lawsuits designed to chill protected activity like free speech.

Judge Holly Kendig found Feud is protected speech, but also that de Havilland showed a minimal probability of prevailing on the merits of her claims and she allowed the matter to proceed. 

Less than a week after hearing oral arguments on the matter, the 2nd Appellate District reversed Kendig's order on the motion to strike, and directed the trial court to grant the motion and award defendants their attorney fees and costs. 

"The reversal is a victory for the creative community, and the First Amendment," Murphy said in a statement. "Today's victory gives all creators the breathing room necessary to continue to tell important historical stories inspired by true events. Most of all, it's a great day for artistic expression and a reminder of how precious our freedom remains."

The court found the First Amendment offers strong protections for creators — and it doesn't matter whether the works are fiction, non-fiction or some hybrid of the two. Allowing Kendig's decision to stand would have rendered actionable all works that accurately portray real people, according to the opinion. Thus, Kendig's decision is reversed. 

"Whether a person portrayed in one of these expressive works is a world-renowned film star — 'a living legend' — or a person no one knows, she or he does not own history," states the opinion. "Nor does she or he have the legal right to control, dictate, approve, disapprove or veto the creator’s portrayal of actual people."

The actress alleged violations of privacy and right of publicity, as well as false light invasion of privacy and unjust enrichment.

De Havilland's suit raised the issue of whether portraying a real person in a work qualifies as a "use" of his or her likeness. The appellate court didn't reach the issue, finding Feud would be constitutionally protected either way — and the First Amendment doesn't require creators to pay for someone's life rights. It also found that Feud's use of de Havilland's likeness is clearly transformative.

With regard to de Havilland's false light claims, the court questions whether a reasonable viewer would believe the docudrama was entirely factual. Regardless, it found the depiction of her is neither defamatory nor would "highly offend" a reasonable person. Overall, it found Catherine Zeta-Jones' turn as de Havilland to be "overwhelmingly positive."

Much of the discussion during oral argument centered on whether "bitch" was an acceptable synonym for "dragon lady." The panel believes it is. (Read the full opinion below.)

"The trial court’s ruling leaves authors, filmmakers, playwrights and television producers in a Catch-22," states the opinion. "If they portray a real person in an expressive work accurately and realistically without paying that person, they face a right of publicity lawsuit. If they portray a real person in an expressive work in a fanciful, imaginative — even fictitious and therefore 'false' — way, they face a false light lawsuit if the person portrayed does not like the portrayal."

Suzelle Smith, attorney for de Havilland, issued a lengthy statement Monday in response to the decision. It reads, in part: “The Court of Appeal, unlike the trial Court, has taken on itself the role of both Judge and jury, denying Miss de Havilland her Constitutional rights to have a jury decide her claims to protect the property rights in her name or to defend her reputation against knowing falsehoods. This is an entirely pro-industry decision, and was clearly written before the hearing less than a week ago.”

March 26, 4:35 p.m. Updated with a statement from de Havilland's attorney.