Following two days of trying to get the right LA Superior Court department, I am happy to announce that I am on the list of press to be present for the trial of Olivia de Havilland vs. FX when it takes place in Los Angeles in late November.
I am thrilled to be able to attend what will surely be a passionate and complicated proceeding. This is a case that I have been following closely, as it has a number of fascinating components. De Havilland, the plaintiff, has brought FX to trial for infringement of common law right of publicity, infringement of California’s specific right of publicity code, invasion of privacy, and unjust enrichment from Catherine Zeta Jones’ portrayal of her in Feud: Bette and Joan last year. De Havilland was not informed of the fact that she was going to be portrayed, and wasn’t compensated for a portrayal that she wouldn’t have consented to.
FX counters that their First Amendment rights to freedom of expression extend to this situation, and requested that the Los Angeles Superior Court throw out the suit based on the fact that it was based on protected rights. In late September, that request was thrown out. The court agreed that the suit was based on protected rights, but de Havilland’s attorneys had been successful in demonstrating that they would be successful should the case go to court. A court date was set, and the trial is moving forward.
De Havilland, 101 years old and living in Paris, is no stranger to landmark lawsuits. In 1943, she singlehandedly took on Warner Bros. for contract malpractice, as they tacked time on at the end of a contract as punishment for roles turned down. Citing a California law that no employer could hold an employee for more than 7 calendar years, she was successful and the suit became the landmark entertainment law known as the De Havilland Decision. It has been referenced in many entertainment cases since, keeping employers of actors, writers, musicians, and athletes in check.
Feud: Bette and Joan creates a number of fictional situations involving de Havilland, including an instance where she refers to Joan Fontaine as her “bitch sister” and says that she doesn’t “play bitches.” This wording seems to be a central part of de Havilland’s case, saying that showing her using such language is damaging to her reputation. The case document says:
“This is false. Olivia de Havilland never called her sister a ‘bitch’ as portrayed in Feud and certainly not to a director. Putting these false words into Olivia de Havilland’s mouth in a documentary format, designed to appear real, has caused Olivia de Havilland commercial and private damage to her reputation. Again, she appears to be a hypocrite, who built a public image of being a lady, not speaking in crude and vulgar terms about others, including her sister, when in private she did the opposite by freely speaking unkindly about others. This is patently false.”
A number of months ago, before the suit was brought, Ryan Murphy, the producer of Feud, was asked about why he didn’t inform de Havilland of the forthcoming show that featured her likeness. He responded that he didn’t want to bother her.
To my mind, de Havilland’s suit not only brings to light what she feels is unfair treatment, but also draws attention to what happens to the elderly on a far too frequent basis. Assuming that she was too old or too far away to care, Murphy acted without her permission. De Havilland is still vibrant enough to be able to stand up and fight for herself, while so many aren’t.
The trial begins November 27, and is expected to last 7-8 court days (Monday-Friday). I will go down to Los Angeles for the final few days of the trial, in order to get the build-up to the final verdict, and then the verdict itself. For the first part of it, I will be sent press releases by the court and will update Twitter and the blog each day with the day’s happenings. Stay tuned!