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 2017: Feud: 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.
Thanks for this. Seems to me Netflix would have A LOT to gain if FX wins, as they could then freely produce bios on anyone while portraying them as saying and doing anything the writers dream up. Hope Olivia wipes ‘em out.
A lawyer friend of mine says she’s not surprised Netflix is filing an amicus brief because…The Crown. They don’t want the royals after them.
Ahhh. I see. 😉
I am against any re-enactment in any media that involves fabricated “biographical” moments of real people. Yes, I am aware that this means the rejection of all biographies except those having had the approval of the actual people being portrayed. Personally, I find most film biographies to be largely fictional, fraudulent, and forgettable. (I still remember walking out of a theatre in anger when the film “Amadeus” portrayed Salieri as a murderer!) The familiar “all persons fictitious” disclaimer that states that the persons portrayed in a work of media are not based on real people should be mandatory for all portrayals. If a story is truly worth telling, it should be able to stand on its own legs without the use of a real person’s name.
Yes, I agree. If you’re going to use a real person, you have to be careful to either use all real, verified incidents, or, if the person is living, get the person’s permission to fictionalize something. Otherwise you open yourself up to suits like this. In my view, Olivia is well within her rights here.
Olivia did send a nice note to me after her sister Joan passed away. I had no contact with here ever before or since that. From what Joan Fontaine said about Olivia, there had to be some truth in what was said. Olivia is a public figure and this is what comes with that wealth and fame. I do know Joan’s comments would be, ” Olivia should be pleased that that made her look so beautiful”.
Thanks for your nice comment. I had the pleasure of interviewing Joan (from afar) for the blog. She was wonderful and lovely. Yes, I do think that to an extent, this comes with wealth and fame. But Olivia also does have rights, and I do think that FX perhaps overstepped a boundary when exercising their First Amendment rights. This is going to be a fascinating case for many reasons, I’ll be following it closely!
Olivia is a public figure and when you become one you lose some of your rights to privacy. Look at the late night hosts that tell jokes about the President, they don’t run the jokes by him before that air the show. If I am right it also has to have an effect on you getting work. Olivia has said she is done with movies and at her age, it would be a hard call to make. I am fond of Olivia
since she did have some nice comments to make to me about her sister, but I don’t think this will fly in the courts.
Thanks for your comment. The main issue seems to be about how far the First Amendment goes. Yes, it’s true that when you’re a public figure you lose some of your rights. But there are precedents in the state of California that tend to favor Olivia’s argument that FX overstepped its bounds. There’s something called the transformative test that protects shows depicting real people as long as they sufficiently transform the story to distort it from actual reality. Olivia’s side is arguing that Feud doesn’t meet the transformative test in the key scenes, and it seems that it doesn’t. The judge in the lower court has seemed to agree.
It’s going to be interesting to watch in any case. I’ve heard both sides argued.