SAG-AFTRA Sides with Olivia de Havilland in FX Feud

The union argues First Amendment protection isn't absolute and docudrama filmmakers have an obligation to "exercise caution" when depicting a living individual.
Left, Photofest; Right, courtesy of FX

While entertainment and digital stakeholders are lining up in support of Ryan Murphy and FX in their legal battle with Olivia de Havilland over her portrayal in Feud: Bette and Joan, SAG-AFTRA is now stepping up on behalf of the 101-year-old actress.

After the limited series about Bette Davis and Joan Crawford aired in the spring of 2017, de Havilland sued the creator and network. She claims the show inaccurately portrayed her as a gossip in violation of her privacy and publicity rights. FX and Murphy asked the court to dismiss the suit under California's anti-SLAPP statute, arguing their series is protected by the First Amendment and shouldn't be subject to a frivolous suit. L.A. Superior Court Judge Holly Kendig denied the motion, finding de Havilland showed a minimal probability of prevailing on her claims.

The network appealed, and now stakeholders are taking sides before California's Court of Appeal makes its decision on the matter.

The union opens its brief by explaining that it isn't taking a stand on the specific facts in this case but, rather, addressing assertions FX and Murphy make about First Amendment protections. Docudrama, it argues, exists in the "gray area between fact and fiction," making it somehow both and neither at once. 

"Defendants-Appellants refer throughout their brief to the 'de Havilland character,' claiming it was dramatized and used as a framing device," writes attorney Duncan Crabtree-Ireland in the brief. "But where the 'character' is a living individual, there is an expectation creators will exercise caution to ensure the depiction does not unjustifiably invade the individual’s rights or falsely dishonor the individual’s reputation."

SAG-AFTRA acknowledges that First Amendment protections are broad but argues it is not absolute and the court must balance the right to express ideas with that of protecting one's reputation. (Read the full brief below.)

The union, to one extent, agrees with the Electronic Frontier Foundation, which filed a brief in support of FX and Murphy and argued the transformative use test raised by defendants may not be an appropriate metric here. 

"Docudramas, generally, are not likely to satisfy the transformative use test, and Feud certainly does not," writes Crabtree-Ireland. "The point of a docudrama is not to transform the individual -- it is to depict them as themselves.... And no matter how talented an actress is, or how much she imbues a role with her own performance, an actor’s depiction of a living individual is not sufficient to transform the individual into something new for purposes of the transformative use test."

It's not unusual for the MPAA and SAG-AFTRA to face off over publicity rights, but this particular case poses an interesting conflict. If the decision stands and the MPAA's fear that creators will be hesitant to produce docudramas for fear of litigation becomes reality, it could potentially mean less work for actors.