Tag Archives: feud

Olivia de Havilland Case Headed to the Supreme Court

Olivia de Havilland

Armed with the rejection of the California Supreme Court in her case against FX, Olivia de Havilland is to file her case with the United States Supreme Court this September.

This is a huge undertaking, and while the SCOTUS only takes a small fraction of the thousands of cases filed with them every year, this one may be of special interest to them–it would be only the second right of publicity case ever filed with the court, and would seek to clarify the case of New York Times v Sullivan. That case established the standard of “actual malice” (publishing of information that is knowingly false or with reckless disregard for truth), and said that newspapers could not be sued for libel unless they had actual malice. Lawyer Suzelle Smith says “The issue for the SCOTUS is whether or not the First Amendment creates an absolute immunity from suit for publishers of docudramas or whether that format like all others is governed by the actual malice of New York Times v Sullivan.”

I have been following de Havilland’s suit closely since the beginning, and was a member of the press at the appellate court hearing in March. If the Supreme Court takes the case, I will go to Washington, D.C. and hear it. Backlots’ readers have been extremely interested in this suit and helped to set a record for the number of amicus letters sent in support of a case at the California Supreme Court (a whopping 90 letters). It has meant so much to me and I know it means a lot to Olivia and her legal team.

While the US Supreme Court does not accept amicus letters, Suzelle Smith tells me that the best thing that Backlots readers can do right now would be to go to the article where the filing was originally reported and leave supportive comments in the comment section. Here is the article, and I will continue to keep you posted as things progress.

On behalf of everyone involved, thank you for all you have done, and continue to do, to preserve integrity in docudramas dealing with living people.

0_vyH5cDFPZ3h2e8KK

Advertisements

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

la-et-mn-olivia-de-havilland-101-birthday-20170701

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.

73f65db750c2ceabe34d6189191f7d8c

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.

51USyjlFtZL._SX327_BO1,204,203,200_

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.

#odehvfx

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

04HAVILLAND-superJumbo

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.

usc2

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.

 

Screen Shot 2018-03-20 at 9.13.44 PM

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

GTY-oliva-de-havilland-jpo-170623_4x3_992

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!

#odehvfx

On FEUD, Feuds, Bette Davis and Joan Crawford

Bette_davis_and_Joan_Crawford

Bette Davis and Joan Crawford share a laugh.

The first season of the FX bio-series Feud came to a close on April 23, capping off 8 weeks of exploration into the famous rivalry between Bette Davis and Joan Crawford. With Jessica Lange as Joan Crawford, Susan Sarandon as Bette Davis, and Catherine Zeta-Jones as Olivia de Havilland, the series had been much anticipated in the classic film blogosphere and we waited on baited breath. Nearly all of us agreed–it had the potential to be either spectacularly good, or monstrously bad.

The evening of the first episode of Feud was an event. Tweets were coming in fast and furious as the episode progressed, with classic film aficionados noting errors as well as praiseworthy moments. Afterward, the reviews came in from fans of Crawford and Davis…and they were mixed. Several of my friends, classic film aficionados with expert knowledge on Bette Davis and Joan Crawford, loved it. Jessica Lange’s Joan Crawford, they said, was flawless. Susan Sarandon found the movements of Bette Davis, a very difficult thing to do. Others found it disrespectful and campy with trite dialogue, featuring such an inaccurate depiction of Olivia de Havilland that it was difficult to see much else.

Catherine Zeta-Jones as Olivia de Havilland.

I have had opinions about Feud from the start, but intentionally held off on expressing them here, because I wanted to wait for the end of the season. But now I feel that I can accurately describe my feelings on the subject.

To understand the context for Feud, it is necessary to understand the context of Hollywood during the studio era. On the set, friendships were not encouraged. Actors were to come to the set to work, and not to socialize with other actors. Studios would manufacture competition in order to make the actors work harder, which frequently led to feelings of isolation and loneliness among those working under the studio system. Given the studio-sanctioned psychological pressure and forced allegiance to the studio at which you were under contract, there was little time to branch out. If you had any time to socialize, it was almost exclusively with people at your own studio. With Bette Davis at Warner Bros. and Joan Crawford at MGM, a feud, as it were, was not present in those early days, nor was a friendship. Bette Davis said it best in her interview with Dick Cavett:

“It really depends on whom you work with. And, you see, we don’t work together very often. For instance, the group of people I knew the most were the people I worked with at Warner’s all those 18 years. And if I had been at Metro, I probably would have known those people much more, because they all knew each other. I don’t think it’s by any intent or jealousy or not wanting to know each other, I think all of those people you’re talking about were very occupied all those many, many years. And it does not leave much time, really, to have a lot of friends.”

Whatever animosity was cultivated later, culminating in the (admittedly fascinating) 1963 Oscars ceremony, was captured and played up in a press that feeds on scandal. Classic Hollywood feuds have long been fodder for magazines, tabloids, and newspaper gossip columns. Scandal sells, and publications have historically stopped at nothing to sell a scandal. But far too often, the feuds are either blown out of proportion or falsified altogether, and lives have been deeply affected by the practice of creating stories out of the lives of real people for the purposes of selling them. The rivalry between Olivia de Havilland and Joan Fontaine is a prime example. The sisters, while always rivals to some extent, had their relationship exposed, magnified, and milked for all its worth for the scandal-hungry press. The media coverage of their sibling troubles ultimately became a self-fulfilling prophecy–the sisters’ ups and downs became more frequent, and they stopped speaking altogether in the late 1970s.

Hollywood fights continue to make for good television and high ratings, so it didn’t come as a surprise to me that FX chose the Crawford/Davis feud for its first season of the show. A common thread among film fans when discussing Feud is praise for the show for bringing classic Hollywood into the mainstream. This is a wonderful objective, but there is a delicacy involved in such a task when the people represented aren’t alive to contribute to it. Respect and dignity for the people’s lives and legacies must be paramount, and my primary concern regarding Feud was the notion of bringing Crawford and Davis into the mainstream by way of a petty catfight.

Bette Davis, at the age of 28, violated her contract with Warner Bros due to unhappiness with the scripts and parts she was offered. She first fled to Canada to avoid legal action, then to Britain to take a 2-film deal. Suing Warner Bros in a British court in order to get out of her contract, Davis challenged Warner Bros on their suspension clauses–that if she didn’t take a film for any reason, she would be put on suspension and have that time added to the end of her contract. Warner Bros lawyers succeeded in making Davis look like a spoiled film star, and she lost the case, with the court ordering her back to Warner Bros to finish her contract. But it was among the first major strikes against the studio system, and Davis’ defiance and bravery in taking on one of the most powerful corporate enterprises in the country case set the stage for Olivia de Havilland to mount a similar case against Warner Bros in 1943–a case she won.

Bette Davis in London in 1936, when she brought suit against Warner Bros.

In 1955, Joan Crawford married Alfred Steele, the CEO of PepsiCo and the man who took Pepsi from a small regional bottling company to monolithic corporate giant. Crawford worked with Steele to bring increased revenue to the company, relocating from Hollywood to New York and traveling all over the country to make personal appearances at Pepsi events. When Steele died in 1959, Crawford discovered that he had left her deeply in debt, except for the Pepsi stock that she had saved, and her image. She was elected to replace Steele’s seat on the Pepsi Board of Directors, and thus became a powerful female executive in the corporate world.

Joan Crawford at a Pepsi board meeting.

While Feud did indeed touch upon these aspects of Crawford and Davis, for which I give the show credit, the focus remained on the fighting. I’m thrilled that mainstream networks are beginning to showcase classic Hollywood and bring it into the mainstream. But especially in our present day, as women find themselves fighting for their rights, I wish the action had centered around their strength, portraying Crawford and Davis as the powerful women they were, resisting the urge for the action to revolve around them as stereotypical, catfighting divas.