Tag Archives: classic movies

Olivia de Havilland vs. FX: On Opinions, Arguments, and Accuracy

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In the aftermath of the Olivia de Havilland oral arguments yesterday, I have seen many reports about what happened during the hearing, and opinions about the case from varied sources. As one who was in the courtroom as it happened, I would like to address a few things that I’ve been seeing frequently over the past 24 hours.

The case is ultimately about holding the powerful accountable to the truth. FX, a big and powerful corporation, took immense liberties with de Havilland’s characterization in Feud, putting vulgar words in her mouth and attributing lines to her that she would not have said, nor signed off on, should she have had the privilege of seeing a script first.  It is true that if the characterization were truthful and accurate, by the standard that we use to judge credible news stories, FX would be well within its legal rights to use her image and likeness. But the false or misleading statements attributed to de Havilland in the series are a disservice not only to de Havilland, but also to the viewers of Feud. No one likes to be lied to or misled, and as I have mentioned before, I myself was misled by the interview that framed the series. I thought it was a real interview that I had missed–I went looking for it, and only when I couldn’t find it did I realize that it was created by the series. I’ve seen just about everything she’s ever done. Can we imagine a passive viewer, who had never heard of de Havilland before, watching Feud? I shudder to think how many passive viewers of Feud are out there who now think that de Havilland gave that interview, and called Joan Fontaine a “bitch” to industry professionals.

This morning, a piece appeared in Vanity Fair whose headline ran “Olivia de Havilland Tries to Prove in Court That She’s Never Used the Word ‘Bitch.'” The first line ran: “You’ll never hear a recording of Olivia de Havilland using the word ‘bitch.’ At least, that’s what her lawyers are arguing now in their ongoing case against FX and its portrayal of the Oscar-winning actress in the series Feud.” This upset me on two levels–first, the gross misrepresentation of the argument (the argument is not that de Havilland has never used the term, but rather she never used it to refer to her sister to industry professionals, the way Feud depicts), and second, the way the article uses shock value and half truths in a similar way to Feud. I did write to Vanity Fair about this, and whether it was due to my input or an independent decision, the article has since been clarified.

But this is what we have come to expect of news and informational sources, of which Feud is one. Another argument I have seen frequently over the past day is one that says “Feud is entertainment, I don’t watch it for historical accuracy.” Entertainment that depicts real people, especially living people, has a responsibility to historical accuracy. Those of us who write about film are inundated regularly with people who believe fictionalizations of real people are rooted in fact. As I work on my biography of Marion Davies, The Cat’s Meow (a fantasy piece about what happened to Thomas Ince on William Randolph Hearst’s yacht) has been a fire that I’ve had to put out every time I give a talk. People love scandal, and if there’s a scandal, they tend to believe rumor above and beyond the facts that disprove it. In addition to the right of publicity claims that de Havilland is fighting for, shows like Feud that add artistic license to real personalities make our lives as film writers that much harder.

In terms of de Havilland and Fontaine, I frequently find myself correcting or defending. One of the things that irked me the most in the courtroom yesterday was the opposing counsel repeatedly referring to the relationship between de Havilland and Fontaine as a “feud.” I highly dislike that term to describe them. They were sisters, who had their ups and downs and good times and hard times. Theirs was a very complex relationship, one that no one understood but them. I make it a point never to judge one sister for her actions regarding the other. Because all we know is the tip of the iceberg of what drove their relationship to be what it was–and it’s truly none of our business anyway. For Feud to touch on that relationship at all, much less without talking to de Havilland first, was inappropriate.

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My favorite picture of the de Havilland sisters, on the night Joan Fontaine won the Best Actress Oscar for Suspicion.

I’ve been seeing many comments expressing the viewpoint that if de Havilland wins, it’s going to change the way docudramas are made. It won’t–it will simply hold studios accountable to the truth when the docudrama involves a living person. If the studio is not willing to do accurate research using reliable sources (non-salacious biographical books with endnotes, newspapers, documentaries, interviews), perhaps that living person should not appear in the docudrama. The Divine Feud, the book by Shaun Considine that Feud references in the case as a research tool, is very salacious and I was surprised to see it in FX’s list of sources.

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California law is explicit in its different applications of the law to the living and to the deceased, and de Havilland’s right of publicity stands for fictionalized works. If she were deceased, a separate statute exists that exempts fictionalized works like movies, books, and plays from having to answer to right of publicity suits. But Olivia de Havilland is alive, and she has a right to be heard.

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Olivia de Havilland vs. FX: Oral Arguments on Appeal 3/20/18

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Courtesy of the New York Times, Olivia de Havilland at her home in Paris last month.

As many of you know (certainly those following my Twitter account over the past 24 hours), today I was privileged to attend the oral arguments at the University of Southern California in the case of Olivia de Havilland vs. FX. It was a fascinating day, and a major coup for Backlots to get one of the very limited press seats. I’m pleased to be able to bring you the events as they happened.

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The main law building at USC.

The case was heard in the USC Gould School of Law building, and the hearing was part of an agreement between the law school and the 2nd District Appellate Court. Once a year, the court moves its proceedings to USC, in order to give students a taste of what it’s like to be in the courtroom. Before the Olivia de Havilland case was brought before the court, there was another that we heard regarding the firing of a social worker who was negligent in his duties regarding a family in which a child died from abuse. It seemed quite heavy and disturbing. I don’t know enough about that case to have drawn meaning from what was being said by the appellants and defendants, but it was interesting to watch how both sides approached something as sensitive as this, in their body language and word choice.

The de Havilland case came before the court immediately after the final argument in the previous hearing. Three judges sat before the attorneys and questioned them on the intricacies of their arguments–starting with FX, followed by the amicus curiae for FX, followed by de Havilland’s side. The attorney for FX, Kelly M. Klaus, made the argument that de Havilland’s claims do not meet the requirements for “actual malice,” which he defined as necessarily “deliberate” or encompassing “reckless disregard.” He said that FX’s intentions were not bad, and thus they should be protected from claims of portraying Olivia de Havilland in a false light. Jennifer Rothman, the amicus curiae for FX (and the author of the Los Angeles Times op-ed piece “What Does Olivia de Havilland Have Against Allison Janney, to which I responded with this post), cited the Guglielmi case (in which the heir of Rudolph Valentino objected to a fictionalized version of his life) as evidence that biographical films are protected under the First Amendment. She asserted that any decision in de Havilland’s favor would be “devastating” to creative expression.

Finally, de Havilland’s lawyer, Suzelle Smith, came up to speak. Addressing the Guglielmi case, Smith noted that California applies right of publicity cases differently to those who are dead and those who are alive, and that the arguments referred to in the Guglielmi decision are irrelevant to what is at hand in this case. Additionally, when pressed on whether or not FX would have had to procure de Havilland’s permission if the depiction was not defamatory, Smith said no. She argued that the First Amendment does not permit right of publicity claims for accurate, non-defamatory representation. The portrayal of de Havilland, she said, was not accurate, and cited Eastwood v. Superior Court (National Enquirer Inc.) to say that one knowingly false statement can discredit the whole work.

Indeed, if I may interject here as a non-lawyer and the author of an upcoming biography, if I see one glaring mistake in a research piece, it does create a sense of distrust of anything else the author might say. The idea of a work being discredited after one false statement is not only a legal matter, but it’s one that affects us all as laypeople. When I watched Feud, I noticed several glaring errors and those errors changed the way I viewed the rest of the show.

After Smith’s argument, FX was given time for a rebuttal, in which Klaus reasserted the network’s claim that de Havilland hadn’t proven actual malice, and FX should be granted First Amendment protections. The court was adjourned shortly after 4:00.

Smith closed her argument with something I think is quite necessary to point out. This is a lawsuit about the truth, and representing fact as fact, fiction as fiction. We are living in an era in which facts don’t seem to count, and we’ve become accustomed to a gray area that leaves us unsure of what the truth is, or how to root it out. When we become numb to the highest powers in our country feeding us falsities, we hardly blink an eye when a docudrama does it. We should hold the powerful accountable to lies–whether that be from those in political office, or those in corporate America telling the stories we see on our televisions.

We will likely hear a decision in the next two weeks. With this lawsuit, Olivia de Havilland stands up to power–and no matter the outcome of this case, I am proud that we have in our midst a strong 101-year-old woman who’s not afraid to be on the front lines of protecting the truth.

 

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

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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.

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

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

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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

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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.

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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.

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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

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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.

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