Olivia de Havilland, and the Lawyer Who Helped Her Change Show Business (Guest Column)

Olivia de Havilland  Warner Bros Split - Photofest - H 2016
Courtesy of Photofest

Last month, Olivia de Havilland — the last of the great actors from Hollywood’s Golden Age -- died at age 104.  That in itself is remarkable for someone who in 1944, at the age of 28, was stricken with viral pneumonia, running a high fever, coughing blood and down to 90 pounds.  She was suffering in the South Pacific while entertaining troops, all because she had been effectively blacklisted by Warner Bros.  And she was waiting.

Martin Gang was waiting too. From his law office in the Taft Building at Hollywood and Vine, Gang waited to hear from the California Court of Appeals. Gang was representing de Havilland. De Havilland, as a minor, had signed a court-approved agreement with Warner Bros. for a term of seven years (inclusive of options).  Warner Bros. had interpreted such an agreement – for de Havilland and all talent -- as meaning seven years of actual service.  If de Havilland refused Warner Bros.’ roles, or was permitted to work for other studios (such as when she memorably appeared in Gone with the Wind for MGM), or was ill, the studio simply extended the length of her contract.

De Havilland got her start in Errol Flynn swashbucklers, but as she matured, she wanted to take on a greater variety of roles.  Warner Bros., and Jack Warner in particular, insisted that she appear in the assigned roles, or risk not working at all.  De Havilland sought legal advice, and was introduced to Martin Gang.  In retrospect, it was a match of the perfect plaintiff with the perfect lawyer.

Gang was diminutive in stature, but a giant in heart and mind.  He was as affable as he was brilliant.  As one of his longtime partners would recall, “He had a great love of people. He had an enthusiasm about people that carried over, so that he never met a person he didn't like. That was true. He always found something that he liked about them. He'd say, 'He's a terrible lawyer, [but] isn't he charming.’"  Gang even had a warm relationship with Jack Warner, who at one time approached Gang to generally represent the studio.  His response was classic Martin Gang:  “Jack, I’d rather sue you than represent you.”

And sue he did.  In the De Havilland case, Gang’s approach was to test the little used California statute that had been originally enacted to in the 1870s to prohibit peonage, or involuntary servitude.  It was a legal maneuver that had not been tried before.  Gang filed an action for the court to declare that the governing statute meant exactly what it said – that a contract for personal services could not be enforced beyond a period of seven years.

Gang anticipated that Warner Bros. would argue that artists were treated differently under the statue (and there was a separate provision) and that the parties could surely agree to extend the term of the contract in circumstances where the studio was not getting the full benefit of the actor’s services.  Gang also knew that the studio would attempt to portray de Havilland as spoiled, uncooperative and ungrateful.  The client and her lawyer were prepared.  In the trial before the Superior Court judge, de Havilland was poised and firm.  Later reflecting on her cross-examination, she remembered that the studio lawyer “would say accusingly, in thunderous tones, ‘Is it not true, Miss de Havilland, that on such and such a date you failed to report to the set to play such and such role in such and such a film?’  And I, remembering Martin Gang’s instructions, said, ‘I didn’t refuse.  I declined.’”

The Superior Court sided with de Havilland, fully adopting Gang’s theory, and reasoning:

“[R]oles might be assigned to an artist which she could not conscientiously portray.  It would even be possible, if an artist should incur the ill will of a producer, to require her to portray roles which would entirely destroy her popularity and value as an artist, and because of her refusal to demean herself, suspensions and elections to extend the term of the contract would prevent her from ever seeking other employment . . . It was to prevent such a condition of peonage or serfdom that the statue was enacted.”

This was headline news in the industry, with the trade press declaring de Havilland a “free agent”.  Warner Bros. appealed, and during the appeal, Jack Warner was steadfast that de Havilland remained under contract.  With her career in suspension, the actress toured military bases in Alaska and the South Pacific, and so vindictive was Jack Warner that he tried, unsuccessfully, to have her barred from these tours.

In December 1944, the Court of Appeals reached its decision.  The Court affirmed the lower court’s ruling in substantial part, in what become known as the de Havilland decision.  The Court of Appeals ruled:  “The  power to provide for the comfort, health, safety and general welfare of any or all employees is granted to the Legislature. . . .   The rights created in the public interest may not be contravened by private agreement.”  Thus:

“An agreement to work for more than seven years would be an effective waiver of the right to quit at the end of the seven years . . .  The limitation of the life of personal service contracts and the employee’s rights thereunder could not be waived.”

Simply stated, a personal services contract could not be enforced for more than seven years, no matter how drafted and more matter how interpreted.  Warner Bros. would appeal to the California Supreme Court, which rejected the appeal.  It was now settled law – seven years meant seven years.

For Olivia de Havilland, this in turn meant professional freedom.  She returned to acting, and went on to win Academy Awards for her roles in To Each His Own and The Heiress, and was nominated for her portrayal of a patient in a mental health hospital in The Snake Pit, all far from the type of roles that Warner Bros. had envisioned for her.  Yet for all the great movies, nominations and awards that bear her name, none may be more enduring and impactful than the legal case that bears her name – De Havilland v. Warner Bros. Pictures.

For Martin Gang, he continued to advance and protect the interests of actors, directors, writers, producers and singers – including Bob Hope, George Burns, Elizabeth Taylor, Richard Burton, Frank Sinatra and Marilyn Monroe.  He was a visionary when it came to the law and also the business of the law.  He founded the first entertainment boutique law firm to represent talent on a percentage basis, which became a model for the talent side law firm which still thrives to this day.  And at a time when it was very much frowned upon for women to be attorneys, Gang hired Hermione Brown after World War II, and delighted when she became a name partner, one of the first women to do so in the city, if not the country.

For the industry, the impact of the De Havilland case cannot be overstated.  In City of Nets, Otto Friedrich distilled it as follows: “[Olivia de Havilland] was free from her contract.  She had won.  Jack Warner had lost, and by implication, the whole studio system had lost.  It was only a crack in the system, but the cracks were spreading.”  As the cracks continued to spread in the decades that followed, the power dynamics between talent and the studios began to even out, and even shift in favor of talent, who could command eight figure salaries, gross from first dollar, and just as importantly, the freedom to walk away from big paydays in pursuit of artistically satisfying projects.  Those power dynamics continue to ebb and flow, but never again will content creators be treated as the chattel of the content owners.  For Olivia de Havilland and Martin Gang, the decision that they awaited from their respective outposts in the fall of 1944 would do more than resolve a dispute, it would change the entertainment business forever.

Bruce Ramer is founding partner at  Gang, Tyre, Ramer, Brown & Passman. Kevin Marks is a fellow partner at the firm.