Backlots at the Courthouse: Olivia de Havilland vs. FX Oral Arguments on Appeal


Hello again, dear readers, I’m here to let you know that I will be traveling to Los Angeles on Monday night to attend the first round of oral arguments in the Olivia de Havilland case, to take place on March 20. I will keep you all in the loop as much as I possibly can. I’d like to let you know what to expect from me on that day, so here’s what I know right now, based on frequently asked questions:

1. Will it be a typical court experience?

The arguments are taking place at the University of Southern California, in order to give the law school students an opportunity to watch a court proceeding in real time, on their own campus. The court has assured us that all the arguments will be just as binding and legitimate as they would be in a traditional setting.

2. Is Olivia de Havilland going to be there?

As you might imagine given her extremely advanced age, Olivia de Havilland doesn’t really travel anymore. If the case makes it past this stage, she is going to need to conserve her energy for potential future court dates, if she is needed in the courtroom later. So she will not be there on Tuesday.

3. Do you think she’s going to win?

Legal precedent is on her side. There have been a number of articles recently that try to distill the case down to its bare bones for comprehension’s sake. But in court, there are many issues at stake and lots of nitty gritty legal details that are necessary for fully understanding what is being asked. Some of these issues are things that this court or other courts have already decided. Having read all the briefs in detail, and independent of my own personal attachment to the case, I say that legally they should order the lower ruling to stand, and that Olivia de Havilland be able to continue with her suit. Here is some of my analysis.

4. Will you be able to update us live from inside the room?

I don’t know. I will if I can, but naturally whatever rules the court and USC enact for the courtroom need to be followed to the letter. On the day of the hearing, I’ll post a live Twitter feed on the blog and you can follow along there, with whatever I’m able to do.

5. Is there anything I can do to show my support?

Several people have asked this, and I’ve talked about it with some friends. We’ve come up with a fun idea–Olivia de Havilland is rarely seen without her pearls these days, and they are symbols of grace and dignity just like she is. Regardless of where you are, if you have any pearl jewelry, you can wear it on March 20 to cheer her on. If you don’t have any pearls, you can feel free to wear something dapper or elegant instead. I’d like to create a hashtag for this, but that’s in the works, stay tuned!

Any other questions? Feel free to ask in the comments. See you in court!



Olivia de Havilland, Allison Janney, and Right of Publicity in the California Courts

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Going about my day this afternoon, an opinion piece in the Los Angeles Times entitled “What Does Olivia de Havilland Have Against Allison Janney?” came to my attention. Following the de Havilland case closely as I have been, there are some things from the article that I would like to address and discuss.

First of all, full disclosure–I am not a lawyer. I have, however, scrutinized the ins and outs of the case, and have read the briefs in detail. I have also familiarized myself with certain precedents in the California legal system that would be either detrimental or favorable to de Havilland’s side.

The author of the piece in question is Jennifer E. Rothman, a respected law professor at the Loyola Law School in Los Angeles, who has written a book entitled The Right of Publicity: Privacy Reimagined for a Public World. The book champions rights held under the First Amendment, as well it should. In this day and age, when the First Amendment is frequently under attack from the highest officeholders in our government, recognition of our rights is more important than ever. I thank Ms. Rothman for her very timely and important work on the subject of First Amendment rights and how they relate to intellectual property law.

Constitutional rights are not absolutes, and don’t hold in every circumstance. The court has acknowledged that the Olivia de Havilland suit is indeed a First Amendment issue, but when FX filed an anti-SLAPP motion (to have the case thrown out as frivolous), the court found that de Havilland’s side had enough merit to potentially override FX’s First Amendment protections. In her article, Rothman referred to the “transformative” test in California courts, which says that a work must significantly transcend literal depictions of a person to ensure that the work is artistic and not an imitation. If they meet the transformative test, they are protected by the First Amendment. Because, to give one example, Feud copied de Havilland’s exact outfit when she presented at the Academy Awards, the lower court has ruled that the transformative test does not apply.

Rothman references Allison Janney in I, Tonya, opening the article with “If two-time Academy Award-winning actress Olivia de Havilland had her way, Allison Janney would not win an Oscar on Sunday night for her portrayal of Tonya Harding’s mother in I, Tonya.” However, I see some key differences between Janney’s portrayal and this case. I, Tonya includes a disclaimer at the beginning and makes clear that the interviews depicted are actual interviews. They are recreated throughout, word for word. It’s reality–or at least it’s someone’s interpretation of reality. It is clear where the interviews end and the dramatic interpretations begin. Feud created an interview with de Havilland that did not exist, and did not make it clear that it was not based in reality. The series does not make a distinction between what is reality and what is not. If someone were to be unfamiliar with Olivia de Havilland and watch Feud, that person might think that de Havilland actually filmed that interview, gossiped about others and called her sister a “bitch” (the vulgar way that Feud had her talk is one of the bases for the suit). I myself wondered if the interview invented by Feud was simply one I had somehow missed. I, Tonya differentiates between the dramatic and the real. Feud doesn’t.

I would like to touch, also, on two cases that Rothman cites in the article–Zacchini v. Scripps-Howard Broadcasting Co. (one in which a human cannonball performer sued for his act being broadcast on TV) and Sarver v. Chartier (the “Hurt Locker” case). Zacchini won his suit in the Supreme Court, and though Rothman says that was an unusual case that lower courts have struggled with, the wording in that decision is relevant to the de Havilland case: that it upholds “the right of publicity in a variety of contexts where the defendant appropriates the economic value that the plaintiff has built in an identity or performance.” This is exactly what de Havilland alleges Feud did. From the original suit:

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Sarver v. Chartier attempted to use the Zacchini case to uphold their argument, but the court threw out the case because he did not benefit financially from his own image in the same way that Zacchini did–and in the way Olivia de Havilland does. The Sarver case shows us that the court does indeed see a difference between an image having economic value for the individual, and not. Going back to I, Tonya, Tonya Harding’s mother does not intrinsically derive economic value from her image. Olivia de Havilland, as an actress and a public figure, depends on it.

We will see what happens at the appellate court on March 20, and it will surely be fascinating to watch. Thanks for reading!


OLIVIA DE HAVILLAND VS. FX: Date Set for Oral Arguments on Appeal


Hello dear readers, there isn’t terribly much to say about this, but I’ve promised to keep everyone on the pulse of the Olivia de Havilland case as much as I can, so I wanted to make a brief post. A few days ago, I noticed an unusual update on the court website and wasn’t entirely sure what it meant. It noted that there was a “calendar date set” at USC, and nothing else. Today, I learned that this was the date of the oral arguments to determine the outcome of FX’s appeal.

On March 20, lawyers will meet at the University of Southern California to argue the merits of their respective sides. It is unusual that the arguments will take place outside a courtroom, but lawyers assure that it will be just as official as it would be in court. The purpose of the unusual setting is to allow USC students to view the proceedings in real time, allowing them a window into the beginnings of a potentially landmark First Amendment case.

For a timeline of the case thus far and an explanation of what it all means, check out my last blog post on the subject. I will continue to report on anything that I learn.

Thanks for reading!

CONFLICT (1945) at Noir City 16


Noir City 16 comes to a close tonight, and as usual, it was a delightful week packed with great movies and great audiences. The Castro Theatre is unlike any other theater I’ve experienced in its audience enthusiasm and positivity. Watching a movie at the Castro is like having a movie night with 1,400 of your friends. The audience laughs at all the “right spots,” but there are also knowing laughs and claps when someone makes an unintended innuendo, when a character is overly dramatic, or when there is a connection between a line in the movie and present-day life. The Castro is San Francisco’s historically gay district, and it has a long legacy of loyal neighborhood support and camaraderie. When you watch a movie at the Castro, you are welcomed and accepted into a warm and loving community.

Noir City is similar. Passionate noir fans come from all over the country to attend this festival, and many dress up in 1940s attire for the occasion. The atmosphere is one of friendliness and acceptance. Noir fans tend to be an intellectual crowd, with deep knowledge of the genre, its movies, and its stars. They’re fun to be around, and in combination with the venue of the Castro Theatre, the festival is irresistible. This year’s theme was “1941-1953: Classy A’s and Trashy B’s,” each day presenting a double bill featuring one of each.


Conflict (1945), screened on Monday, has been my favorite movie of the festival thus far. It is reminiscent of The Two Mrs. Carrolls and even Alfred Hitchcock’s Rebecca in its haunting tone, telling the story of a man (Humphrey Bogart) who has fallen in love with his wife’s much younger sister, and the man plots to kill his wife and cover up the crime. When he thinks his wife is dead, he goes about pursuing the sister. But soon, eerie things begin to happen…and his plan slowly unravels.

It is relatively easy to spot a good noir, and Conflict is a really good noir. There are several features that, when done well, contribute to a movie that keeps you on the edge of your seat and glued to what’s happening on the screen. A tightly woven plot where every event and every word forms a chain leading to the ultimate conclusion, with plenty of suspense and cunning, intelligent, meticulous characters. Conflict features all of these. Often, a good noir will have what Hitchcock termed a “MacGuffin,” an external motivator that drives the actions of the main character. MacGuffins are usually used as framing devices, but are not the true focus of the movie (examples are “Rosebud” in Citizen Kane, and the falcon in The Maltese Falcon). The MacGuffin in Conflict, I would say, would be Bogart’s desire for the younger sister. It drives him to murder, and then it continues to be relevant throughout the movie, popping up again at a key moment later. But it’s not the focus, though we initially think it’s going to be.

Conflict was actually filmed in 1943 but released in 1945, which perhaps was a detriment to the film’s legacy as the genre was already well established by 1945. Conflict is relatively rare, but its inaccessibility is at odds with how brilliant this movie is. Had it been released in 1943 as originally intended, Conflict may have been considered one of the great noir classics.

In his introduction, “Czar of Noir” Eddie Muller noted that despite the quality of the movie, Conflict was one of Bogart’s least favorite movies, due to the fact that it somewhat reflected his real life situation. Much like Katharine Hepburn, Bogart always seems to play Bogart. Whether he’s acting in a comedy or a drama, the Bogart character usually remains the same type–a stoic, crusty type who generally tolerates people. Audiences felt that what they saw on the screen was what Bogart was like in real life. In 1945, Bogart had fallen in love with a much younger woman (Lauren Bacall) and was in the process of divorcing wife Mayo Methot. He was uncomfortable with the idea that the audience might associate him with spousal murder during this rocky time in his life. He needn’t have worried–Bogart and Mayo divorced and he soon married Lauren Bacall, remaining married to her until his death in 1957.

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Humphrey Bogart and Lauren Bacall at their wedding.

Thanks for reading! If Noir City is coming to a town near you, be sure to check it out. Once again, here are the tour dates and cities:

NOIR CITY SF: January 26-February. 4, 2018
NOIR CITY Seattle: February 16-22, 2018
NOIR CITY Denver: March 23-25, 2018
NOIR CITY Hollywood: April 13-22, 2018
NOIR CITY Austin: May 18-20, 2018
NOIR CITY Boston: June 8-10, 2018

2018 dates for NOIR CITY Chicago, Detroit, and Washington, D.C. TBD

Noir City 16: DESTINY (1944) and FLESH AND FANTASY (1943)

Dear readers, if you’ve been following my Twitter feed over the past few days, you know that I’ve been attending the 16th annual Noir City festival–a weeklong smorgasbord of film noir favorites and rarities, on the big screen at the Castro Theatre in San Francisco. It’s been a fascinating few days thus far, and I’ve enjoyed everything I’ve seen.

I’ve been asked several times over the course of this festival, including by my various Lyft drivers and friendly employees at Hot Cookie (San Francisco’s greatest cookie establishment, right next door to the Castro), for an explanation of what exactly film noir is. It’s a bit hard to pin down. Noir is a genre of film that rose up around the time of America’s entrance into World War II, involving dark, shadowy stories that often tease the limits of the Motion Picture Production Code. It has several key elements–noir films deal with crime, shady figures, powerful and seductive women, and the creative use of light and shadow. Frequently, voiceover narration is employed, as in the cases of the classic noirs Gilda (1946) and Double Indemnity (1944).

There is some debate as to whether Hitchcock movies count as noir. Hitchcock somewhat defies categorization, but the storylines, characterizations, and uses of lighting that have become signatures of Hitchcock’s work are also typical of the noir genre. Noir City takes a liberal definition of the genre, and on Saturday night festivalgoers were treated to a showing of Hitchcock’s fantastic Shadow of a Doubt.

The festival is hosted by Eddie Muller, known as the “Czar of Noir” among film fans, and before each screening Muller gives an intro that whets the viewer’s appetite for what’s to come. I was excited to see a Barbara Stanwyck movie on the program this year, as I have a particular fondness for Stanwyck and I know Eddie Muller does, too. I’ve seen nearly all her movies–but this one, Flesh and Fantasy, was one I hadn’t seen. I decided to attend the movie beforehand as well, and I’m glad I did.

Jean and Curtis in Destiny

The movie that came before Flesh and Fantasy, an hour long story about an accomplice to a bank robbery and his journey of escape entitled Destiny, was originally intended as the first vignette of Flesh and Fantasy, but instead it was cut off the final version and released as a movie of its own the following year. Destiny has some very interesting elements to it, including treatment of a blind character that, in some ways, was quite modern. The ending was important to understanding the beginning of Flesh and Fantasy, and had I not seen Destiny and heard Eddie Muller’s intro, the first part of Flesh and Fantasy wouldn’t have made much sense.

Flesh and Fantasy is comprised of a series of vignettes that explore the human mind and its relationship to fate and destiny. The movie features a stellar cast, and the stories are reminiscent of The Twilight Zone in their eerie twists on reality.  Providing a bit of comic relief and introductions to the vignettes are two friends, played by the delightful Robert Benchley, a humorist and one of the original members of the Algonquin Round Table, and David Hoffman, in one of his first film roles (he would go on to have a more prolific career in television). The first vignette introduced by Benchley and Hoffman tells the story of a woman who finds herself unattractive, and she interacts with the world with bitterness and scorn. Putting on a mask of a beautiful woman, she goes to a dance and falls in love with a man who assures her that he would love her no matter what she looks like under the mask. The final scene is comprised of several twists and turns that made the audience gasp with surprise and delight.

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The second vignette involves a man (played by Edward G. Robinson) who is told by a palm reader that he is destined to commit a murder. He can’t get his mind off it…and plots a murder to try to outwit his fate. This story reminded me of Ray Bradbury’s short story “The Illustrated Man,” in the way that the body is used to show an unavoidable future.

The third vignette is where Barbara Stanwyck comes in, acting alongside Charles Boyer. Boyer plays a trapeze artist who dreams that he falls off the trapeze and onto a woman (Stanwyck) wearing very distinctive earrings, shaped like lyres. The dream affects him so much that it throws him off his act that evening, and he wonders if he can ever recover. When the circus sails for a foreign show, Boyer meets a woman on the boat…the same woman he saw in his dream. They fall in love…and she wants to come watch him perform.


Each story was very compelling, and the concept was amazingly forward-thinking for 1943. Directing was the great French director Julien Duvivier, known as one of the role models for French New Wave filmmaker Jean Renoir. Duvivier was clearly ahead of his time, not only with his explorations of dreams and fate, but also in bookending the vignettes–one leading directly into the next. This, perhaps, contributed to the fact that the movie isn’t better known. No one had anything to compare it to–now we have The Twilight Zone and a whole generation of similar TV shows and movies that make Flesh and Fantasy a truly fascinating piece.

After it was over, the audience was tittering with excitement over what they had just seen. I was left with the feeling of how sad it is that the movie is not more accessible–and how lucky we are that festivals like Noir City exist to expose us to such rarely seen gems as this one.

Noir City is traveling this year–here are the dates when the festival may be in a town close by:

NOIR CITY SF: January 26-February. 4, 2018
NOIR CITY Seattle: February 16-22, 2018
NOIR CITY Denver: March 23-25, 2018
NOIR CITY Hollywood: April 13-22, 2018
NOIR CITY Austin: May 18-20, 2018
NOIR CITY Boston: June 8-10, 2018

2018 dates for NOIR CITY Chicago, Detroit, and Washington, D.C. TBD

And keep your eye out for Flesh and Fantasy. You won’t regret it.

I’ll be back with more updates from Noir City later on this week. Thanks for reading!

Amici Curiae Briefs Filed in Olivia de Havilland Case


As promised, readers, I’m here to provide another update on the Olivia de Havilland case. On Wednesday, a group of intellectual property professors applied to file an amicus curiae brief with the court in support of FX, and today, several more amici curiae briefs were filed, including one from SAG/AFTRA in support of de Havilland.

Amici curiae briefs (“friend of the court” briefs), as I understand them, are statements from third parties with nothing to gain, in support of one side of a court case. Courts can choose to take them under review or not, and I don’t know what the court will do here. But it does look like we may be looking at another delay.

To bring you up to speed on where we are in the process, here is the timeline of the case thus far:

March 2017Feud: Bette and Joan airs, which contained a portrayal of Olivia de Havilland by Catherine Zeta-Jones. FX did not consult with Olivia about the show or her character.

June 30, 2017: Olivia de Havilland sues FX on four counts–infringement of common law right of publicity, infringement of the California Civil Code on right of publicity, invasion of privacy, and unjust enrichment. Trial set to start November 27.

August 29, 2017: FX files an anti-SLAPP motion (an assertion that a case is frivolous and should be thrown out) for Judge Holly Kendig to consider. They assert that the case is based on protected First Amendment rights. In order to be successful, Olivia’s side will have to show a probability of prevailing should the case go to court.

September 29, 2017: Judge Kendig finds that despite the free speech protections that are afforded to FX, Olivia’s side has proven that they could be successful if they went to court. Free speech protections are not absolutes, and FX’s actions may not be protected under the umbrella of free speech. Trial remains set to start on November 27.

November 17, 2017: FX appeals the decision. The case now goes to the appellate court.

Early December to early January, 2017/2018: Statements and replies are filed.

January 24: Amicus curiae from intellectual property professors

January 26: More amici curiae from Netflix, EFF, and MPAA in support of FX, and SAG/AFTRA in support of Olivia de Havilland.

The case is getting heated, and it will be interesting to watch from now on. Regardless of the ultimate outcome, with her landmark 1944 De Havilland Decision behind her and this case in the works, Olivia de Havilland is now able to say that she has been attached to two significant entertainment law cases in her lifetime.


Marion Davies’ 121st birthday


Marion Davies was born on this date in 1897. She and her nephew, the screenwriter Charles Lederer, always celebrated their birthdays together on New Year’s Day (Lederer was born on December 31), but January 3 was the actual date of her birth.

January of 1897 is one of the warmest Januarys on record for Brooklyn, where Marion was born. The fact that she was born during a warm spell is symbolic of her life–Marion became known as one of the warmest and most tenderhearted people in the entire film colony, generous to a fault, with always a nice and encouraging word to say to the underdog. She was a vivacious, bubbling personality, with a true gift for comedy and mimicry that shone through in many of her film roles.

Marion Davies has been the focus of my life for the past 4 years. In November of 2013, I began the process of writing a biography about Marion–and have traveled the world in search of people and information relating to the life of this remarkable woman. Every moment has been a joy. A biographer lives with the biographical subject all day, every day, and I can’t think of anyone in whose presence I would rather spend my days than Marion Davies. I really like her immensely, which is a true gift for a writer.

As the book enters its final stages of completion, I will keep Backlots readers posted about its progress. In the meantime, in honor of Marion’s birthday, I would highly recommend checking out a few of her movies. Here are a few of my recommendations, with clips for each:

Show People (1928)

Probably Marion’s finest film from a technical standpoint, Show People is tightly woven, funny, and self-aware. In the clip below, you can see how Marion enjoyed herself on set, and how adept she was at using her face for comedy.

The Patsy (1928)

This is where Marion really gets to show us her stuff. The Patsy is the film that demonstrates the best of what Marion was capable of doing, and it’s a knockout. Her talent for mimicry is shown in impressions of silent stars Mae Murray, Lillian Gish, and Pola Negri. If you’ve never seen a movie with any of these stars, rest assured that these impressions are spot on.

Quality Street (1927)

Though primarily known among silent film fans for her comedic work, Marion also had a significant talent for drama. In drama as well as in comedy, she uses her face in subtle and meaningful ways, unique even for a silent actress. Quality Street is not very easily found, but if you can manage to get your hands on a copy, it’s a very worthwhile movie. Here is one of the few clips available online from it–apologies for the shots of the crowd.

The Red Mill (1927)

Marion was covered in freckles from head to toe. Normally they’re covered with makeup, but in The Red Mill, one of Marion’s most whimsical movies, we see them out in full force. This is perhaps the closest we get to the way Marion was in real life–from her au naturel makeup, to her impish, prankster character.

Blondie of the Follies (1932)

I’m sorry to say that there seems to be no clip online of Blondie of the Follies, which is really too bad, as it’s one of her greatest roles. Earlier in her career, Marion had been resigned too often to two-dimensional characterizations–due to fears on the part of Cosmopolitan and her real-life romantic partner William Randolph Hearst that the public would see her as imperfect. But here, she is finally given a meaty role, and she’s marvelous in it.


Marion was never terribly comfortable in talkies, and as a result her screen presence in talkies sometimes reflected her discomfort. She had a significant stutter from early childhood, and speaking made her self-conscious onscreen. But a common characteristic among people who stutter is the ability to speak fluently when reciting memorized dialogue…and this was the case with Marion. She never stuttered onscreen, and had a beautiful deep alto speaking voice. So that you may hear Marion speak, I am including an amalgam of clips from her final film, Ever Since Eve (1937).

If you’d like to learn more about my project and about Marion Davies before my book comes out, visit my book’s website/my author page at Thank you for reading!