MPAA, Netflix Support FX's Defense Against Olivia de Havilland

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

Olivia de Havilland may have an early court ruling on her side in the legal battle against Ryan Murphy and FX over Feud: Bette and Joan — but entertainment and digital stakeholders are rallying in support of the network and biopic producers everywhere.

The 101-year-old actress sued Murphy and FX, claiming the series inaccurately portrayed her as a vulgar gossip. The creator and network promptly filed an anti-SLAPP motion, arguing the suit should be tossed early under a California statute that bars frivolous lawsuits arising from First Amendment activity on matters of public interest. 

While anti-SLAPP motions are typically quite successful for Hollywood defendants, Los Angeles Superior Court judge Holly Kendig didn't find granting it appropriate in this case. FX convinced Kendig that the actress' complaint did arise from free speech, but couldn't get past the statute's second prong — whether de Havilland has a likelihood of prevailing on her claims.

Netflix and the MPAA — whose members include Paramount, Sony, Twentieth Century Fox, Universal, Disney and Warner Bros. — are backing Murphy and FX in their effort to overturn that decision on appeal. 

"Affirming the trial court’s analysis — an unprecedented deviation from decades of case law protecting freedom of expression from state tort law claims — threatens to doom entire genres of fact-based motion pictures, including docudramas and biopics," writes attorney Mark Kressel in an amicus brief filed Thursday. 

Kressel argues de Havilland's claims are based on the defendants' use of "centuries-old storytelling techniques" inherent to projects based on or inspired by real people or events. He also notes that requiring public figures like de Havilland to show a defendant acted with malice in order to succeed on a false light claim protects filmmakers from overzealous celebrities and politicians looking to censor their depiction on screen.

"Abrogating constitutional free speech rights is a serious matter, and courts must proceed with caution," writes Kressel. "Authors, writers, and directors cannot tell these types of stories if they are required to present every moment with 100 percent literal accuracy, without having any character utter a word that was not actually said, and without every event in the story taking as much time on screen as it did in real life."

The amicus brief highlights some of this year's awards nominees that could be actionable if Kendig's decision stands, such as The PostMolly's Game and I, Tonya. 

MPAA and Netflix clarify in a footnote that they do not believe a false light claim involving a docudrama can never be justified. Rather, they feel de Havilland did not meet the elements required: proving the portrayal is highly offensive to a reasonable person and was the result of malice. Their larger concern, though, is that Kendig allowed de Havilland's right of publicity claim to survive.

"The trial court’s ruling here, which found Feud’s creators subject to a right of publicity claim merely because they received a financial benefit from airing their work without obtaining permission from or compensating Ms. de Havilland, would have subjected [many] culturally significant motion pictures to the threat of lawsuits from persons seeking to censor or control their public portrayal under the guise of protecting the economic value of their personas," writes Kressel. (Read the full brief here.) 

The Electronic Frontier Foundation, Organization for Transformative Works and Wikimedia Foundation also on Thursday filed an amicus brief in support of Murphy and FX.

"The trial court treated the mere intention to create realistic drama as enough to cancel out First Amendment protections," writes EFF attorney Daniel Nazer. "This effectively makes the entire genre dependent on the express and advance permission of all subjects, rendering it impossible to make searching and critical works like The Social Network or The People v. O.J. Simpson."

While the brief filed by MPAA and Netflix focused on the effects for docudrama creators, EFF and company argue the decision has much broader implications. (Read the brief in full below.)

"An enormous range of expression concerns real people, brings some economic benefit to the speaker, and is made without the permission of the subject," writes Nazer. "This includes documentaries, websites, biographies, songs, and countless other works. ... [T]he mere threat of a right of publicity suit could be enough to deter many creators from finishing a project."

EFF argues Kendig erred by misapplying the transformative use test, which could give a work First Amendment protection from right of publicity claims if it transforms it into "something more than a mere celebrity likeness or imitation." EFF also questions whether the test is even appropriate in this context and argues it penalizes docudrama creators for being accurate and realistic.

"Suppose FX, inspired by Winter v. DC Comics (2003) 30 Cal.4th 881, had chosen to portray de Havilland as a half-human/half-worm creature," writes Nazer. "By the logic of the trial court, that would mean Feud would be protected by the First Amendment. But if qualifying for free speech protection requires an artist to turn any real world subject into a half-human/half-worm creature to warrant First Amendment protection, then the underlying doctrine has gone seriously wrong."