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Olivia de Havilland Update, Part II–How to Get Involved

Posted on May 9, 2018 | 6 comments

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Dear readers, over the past months, I have gotten several comments and emails from people asking what they can do to help the Olivia de Havilland case. I just received some correspondence from de Havilland’s legal counsel, outlining exactly how to get involved in the petition to review the appellate court’s decision. I had known this was coming for some time, but wanted to wait to update you until I had all the information. Now I can tell you all the details of exactly what we can do.

We are to write amici curiae letters to the California Supreme Court in support of the petition to review. For those up to the task–doing this correctly requires careful following of several steps, so I’m going to streamline it as much as possible based on what I’ve done, so that this process can take as little of your time as possible.

Here is what your letterhead should look like, and how you should address and start the letter:

Your name

Your address

Your phone number

 

 

Chief Justice Tani Cantil-Sakauye

and the Associate Justices

Supreme Court of California

350 McAllister st.

San Francisco, CA 94102
Re: de Havilland v. FX Networks, LLC, et al., Court of Appeal Case No. B285629 and California Supreme Court Case No. S248614

Dear Chief Justice Tani Cantil-Sakauye and the Associate Justices of the California Supreme Court,

Pursuant to California Rule of Court 8.500(g), I am writing in support of the Petition for Review of Olivia de Havilland, de Havilland v. FX Networks, LLC, et al., Court of Appeal Case Number B285629 and California Supreme Court Case Number S248614.

Here is what you should put in the letter:

  • Who you are, your profession, your interest in the issues of the case (right to protect name and identity from knowingly false statements, right to a trial by jury, etc)
  • Why these issues are important to be considered by the California Supreme Court
  • Why trial by jury is important for everyone, not just Dame Olivia
  • State that you have no personal financial interest in the case

Speak in your own voice, and explain (for example) why truth in media is important, and that falsehoods have no value. Most of all, make it your own and explain why this is important to you.

THEN:

Fill out the Proof of Service document. It’s pretty self-explanatory. Feel free to just download the photo, print it, and fill it out.

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Now comes the rather daunting part (in case you forgot that this is a legal case).

  • Make TWO copies of the letter and send them to the attorneys on both sides of the case. Their names and addresses are in the Proof of Service document, but to make everything totally accessible, here they are again:

Suzelle M. Smith, Esq.                                             Kelly M. Klaus, Esq.

Howarth & Smith                                                     Munger Tolles & Olson LLP

523 W. 6th Street                                                      350 South Grand Avenue

Suite 728                                                                   50th Floor

Los Angeles, CA 90014                                            Los Angeles, CA 90071

  • Then you must make EIGHT copies of the letter you wrote, and mail the copies, along with the original letter you wrote and the Proof of Service to the Clerk of the Court:

Mr. Jorge E. Navarrete

Clerk of the Court

Supreme Court of California

350 McAllister Street

San Francisco, CA 94102-4797

  • And that’s it!

We are to get our letters mailed by June 1, 2018. Suzelle Smith’s office wants us to know that she’s aware of how much effort this is, but she assures us that it will be well worth it. These letters might make the difference.

Any questions? Comments? Feel free to leave anything in the comments section or email me. Thank you so much for supporting this important cause. Suzelle Smith closed her correspondence with:

“Thank you very much for your interest in Miss de Havilland’s case and your willingness to be a part of the process for justice.  If the California Supreme Court does take the case, we hope you will be at the oral argument.”

Happy letter writing!

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#odehvfx

 

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Olivia de Havilland Update

Posted on May 4, 2018 | 3 comments

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Dear readers, just as I was preparing to update you on the remaining days of the TCM Classic Film Festival (and my Show People intro), some pressing news found its way into my inbox. I have prided myself on bringing news on the Olivia de Havilland case to Backlots’ readers before the mainstream news outlets get it, but it looks like I’m going to have to up my game–Variety broke this before I did (though I did tweet about it first. I have a vicious competitive streak when I get going!) Regardless, here is the latest news on the Olivia de Havilland case.

This afternoon, Olivia de Havilland’s lawyers filed a petition with the California Supreme Court to review the decision of the appellate court, that upheld the anti-SLAPP motion filed by FX in de Havilland’s case against them. De Havilland’s counsel has noted that there was perhaps conflict of interest with the three judge panel that convened to review the case at the appellate court, and they hope that the California Supreme Court will give de Havilland the jury trial that she desires.

Shortly after the appellate court decision, de Havilland wrote from her home in Paris that “it is important that cases with merit be allowed to proceed to a jury trial. My case is about FX publishing false statements about me and using my name without consent. I, and other individuals in like circumstances, should not be denied our Constitutional right to trial by jury, as the trial judge ruled.”

I will be posting information soon regarding how Backlots readers can get involved, asking the court to accept the petition for review. Please stay tuned, and I’ll continue to bring you all the newest information as I learn it.

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Decision in Olivia de Havilland vs. FX

Posted on March 26, 2018 | 8 comments

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This afternoon, a decision came in for the case of Olivia de Havilland vs. FX, which I have been following closely here. The appeals court has decided to “reverse and remand” the case to lower court, overturning the decision of lower court judge Holly Kendig and giving the case to Feud.

A statement by Ryan Murphy says “The reversal is a victory for the creative community, and the First Amendment. Today’s victory gives all creators the breathing room necessary to continue to tell important historical stories inspired by true events. Most of all, it’s a great day for artistic expression and a reminder of how precious our freedom remains.”

As I have made clear in other posts, the day is great only for docudramas that want to tell half-truths and outright lies, planting seeds of gossip and rumor in viewers’ minds that grow to create a warped lens through which they view history. Ryan Murphy doesn’t have a particular interest in keeping those seeds of gossip and rumor at bay–he profits from this era where no one really knows where the truth lies. Not only do these half-truths and outright lies make Olivia de Havilland’s life difficult, but also mine. As a film writer and historian, I and others like me have to be the ones to untie all the knots that Feud has created.

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After the decision was released, I told myself that I would read the opinion with an open mind. Perhaps the justices would say something that I hadn’t thought of. But as soon as I opened and read it, it was clear to me that this case had been decided on erroneous legal precedent. The Guglielmi case, to which the author of the opinion, Justice Anne Egerton, refers frequently, is only applicable to dead people. California Civil Code 3344.1 exempts docudramas and dramatic interpretations from right of publicity claims if the person is dead, but the statute from which it branches, California Civil Code 3344, does not exempt them from right of publicity claims if the person is alive. If they had used a deceased celebrity, they would be protected under the Guglielmi decision. Not so with a living person.

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From the decision. This is not correct. De Havilland was within her legal right to challenge a historically inaccurate portrayal. If it had been accurate, she wouldn’t have been able to touch it. But it wasn’t, so she can and she did.

The decision also references Sarver vs. Chartier, also known as the “Hurt Locker” case. But once again, this doesn’t have anything to do with the de Havilland case at hand. In this particular instance, Sarver agreed to let people film him and the resulting character in the movie was a composite, so he had no case and it was thrown out of court. De Havilland did not agree, and the character was not a composite. I believe that the appeals court may be misconstruing “raw materials of life” in Sarver to mean something that it doesn’t.

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In reference to this part of the decision, in addition to the comments about Sinatra’s drinking not being defamatory or offensive, I think the court is giving too much credit to the average, reasonable viewer of Feud. In a previous post, I discussed my talks on Marion Davies, and how I frequently have to spend far more time debunking myths propagated by The Cat’s Meow than those myths are worth. Far too many people watch docudramas and believe they’re telling the truth–then, no matter how many facts are provided to disprove them, they keep believing the more exciting story. This ruling allows producers of docudramas to exploit that tendency, rewrite history, and put the onus on the historians to correct it.

We do know that there had been a draft opinion before the oral arguments, and it looks as though the case will proceed to a higher court. A statement from Suzelle Smith, de Havilland’s attorney, reads in part: “Miss de Havilland, her many fans all over the world, and actors in similar situations are rightly disappointed in this Opinion.  The Opinion does not properly balance the First Amendment with other important rights.  This case appears to be destined for a higher court, and we will be preparing the appropriate petition for such review.”

#odehvfx

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

Posted on March 21, 2018 | 9 comments

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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

Posted on March 20, 2018 | 11 comments
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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

Posted on March 16, 2018 | 5 comments

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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, Allison Janney, and Right of Publicity in the California Courts

Posted on March 2, 2018 | 18 comments

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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!

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

Posted on February 16, 2018 | Leave a comment

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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!

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Yet Another Olivia de Havilland Trial Update

Posted on November 30, 2017 | 5 comments
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Virginia Cunningham from The Snake Pit expresses the feelings of everyone following the de Havilland case, as we wait around for the trial to start.

Dear readers, if it feels like I’m posting frequent de Havilland trial updates, you are quite correct. Such is the nature of a court case, even before it begins. Here I am with another update, which I will keep succinct and to the point while giving you all the information I have.

The hearing of Olivia de Havilland vs. FX, for which I was planning to be in Los Angeles this week, is now in the appellate court. It was scheduled to begin on November 27, but just before Thanksgiving, FX filed an appeal to Judge Holly Kendig’s denial of FX’s request to throw the case out. This is staying the hearing until approximately February.

I’m not a lawyer, but I have been following the court documents closely. In the original motion to dismiss, Judge Kendig found that FX’s defense is indeed based on protected speech. Because of this, de Havilland’s side had to prove that their defense had enough merits to override FX’s First Amendment protections. Upon review of these merits, she found that de Havilland’s side had succeeded in meeting all their burdens showing that they would be successful in overriding those protections should the case go to court.

As a layperson, I would cautiously venture to say that it is unlikely that an appellate court would reverse a decision that found all burdens met. If I’m correct, we will see the case go to trial in early February.

What we are expecting now:

FX brief to be filed: December 4

Counsel to Olivia de Havilland’s brief to be filed: December 18

Appellate court decision: Late January

If appellate court denies appeal, trial to start: Early February. I will continue to follow the court documents closely and will attend the trial when it happens.

De Havilland has been granted expedited treatment due to her advanced age, so we can be confident that the court will work as quickly as possible to get the matter resolved.

Stay tuned!

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