Olivia de Havilland, FX Debate Whether "Bitch" is a Vulgar Term in 'Feud' Arguments

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

Olivia de Havilland's lawsuit over Feud: Bette and Joan has the potential to shape how filmmakers approach docudramas in the coming decades, so it's only fitting that the setting for appellate arguments would be a USC classroom packed with future lawyers. 

The legal fight began in June, when the 101-year-old actress sued FX and Ryan Murphy over her portrayal by Catherine Zeta-Jones in Feud. The star says the series was meant to look like reality, but no one consulted her and the show 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 that arise from protected activity like free speech.

Judge Holly Kendig wasn't convinced. While she found Feud is protected speech, she also felt de Havilland showed a minimal probability of prevailing on the merits of her claims and allowed the matter to proceed. The SLAPP statute provides an automatic right to appeal before a trial takes place, putting the case before California's 2nd Appellate District.

On Tuesday afternoon, in a basement classroom of the Gould School of Law, a panel heard arguments on the boundaries of storytelling within the docudrama genre. The appellate court regularly hosts offsite hearings to expose legal scholars to the process, and this group of budding attorneys just happened to witness a case that has much of Hollywood on edge.

The students got an earful, as attorneys spent a good chunk of their time discussing whether the terms "dragon lady" and "bitch" are interchangeable. At 100 years old, de Havilland called her late sister Joan Fontaine the former — but, on the series, Zeta-Jones refers to her as the latter. 

The language is at the center of de Havilland's false light claim. She also says the defendants inaccurately portrayed her as a gossip, falsely showed her mocking Frank Sinatra's drinking and implied she endorsed the series by showing her onscreen equivalent give interviews that never actually happened.

Attorney for FX and Murphy, Kelly Klaus, says her case is meritless, and argues that if Kendig's decision is allowed to stand it would be "hard to imagine a living person whose claims would not survive an anti-SLAPP."

"Docudramas are understood not to be a literal retelling of history," Klaus said. He also argued that de Havilland failed to show his clients acted with malice. The series generally shows her in a positive light, he said, and "there is literally no evidence" that defendants "entertained any serious doubts" about the portrayal. The word-swap of bitch for dragon lady was nothing more than a creative effort to resonate with a contemporary audience, Klaus argued.

He also argued that her right of publicity claim shouldn't be allowed to proceed because the series is transformative and the use of de Havilland's likeness isn't responsible for its commercial success.

The actress' attorney, Suzelle Smith, began her arguments by pointing out to the room of students that her client is still alive, and describing de Havilland as an icon. "Her reputation, unlike many others in Hollywood ... is a consummate lady," she said, adding that she hopes it isn't "outdated" to be well-mannered.

In an effort to distinguish between the actress' false light and right of publicity claims, associate justice Anne H. Egerton asked Smith whether her client would still have a right of publicity claim if she had felt the portrayal had been accurate. No, Smith said, a literal, accurate portrayal would be protected by the First Amendment.

Egerton then asked whether de Havilland would have a claim if the portrayal was fictionalized but not defamatory. She was followed by judge Halim Dhanidina who asked Smith to explain the difference between dragon lady and bitch and why one would be more offensive than the other. 

Bitch is vulgar, Smith argued. It "may get a lot of play" in modern conversation, but in her house "it gets your mouth washed out." She noted that de Havilland waited 100 years to call her sister a dragon lady after being pressed about their relationship, and she chose her words very carefully. Had Feud used the correct quote, Smith said, "we wouldn't be here."

Smith emphasized to the panel that case is still in its early stages, arguing that de Havilland only needs to  demonstrate a minimal probability of success on the merits of her claims to survive the second prong of the SLAPP-statute and shouldn't have to prove her entire case before conducting discovery.

Presiding justice Lee Smalley Edmon asked Smith to explain how allowing someone like de Havilland to control an allegedly false use of her likeness in a docudrama isn't censorship. Smith responded that it wouldn't stop docudrama creators from making accurate works, or punish them for "innocent" mistakes, but that, in this case, the defendants knew de Havilland never uttered the statements at issue and put them in her mouth onscreen anyway. 

After 90 minutes of argument, and more swearing than most law students have likely ever witnessed in a classroom, the panel took the matter under submission.