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.
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.
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.
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.”
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