Tag Archives: olivia de havilland

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


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.

5. Is there anything I can do to show my support?

Several people have asked this, and I’ve talked about it with some friends. We’ve come up with a fun idea–Olivia de Havilland is rarely seen without her pearls these days, and they are symbols of grace and dignity just like she is. Regardless of where you are, if you have any pearl jewelry, you can wear it on March 20 to cheer her on. If you don’t have any pearls, you can feel free to wear something dapper or elegant instead. I’d like to create a hashtag for this, but that’s in the works, stay tuned!

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



Olivia de Havilland, Allison Janney, and Right of Publicity in the California Courts

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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!


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


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!

Amici Curiae Briefs Filed in Olivia de Havilland Case


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.


Yet Another Olivia de Havilland Trial Update

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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!

Update on Olivia de Havilland vs. FX

I wrote a post a few days ago detailing how I would be going to Los Angeles in the final days of the Olivia de Havilland vs. FX trial, and I have been paying close attention to the case ever since. An update to the case has recently been posted to the Los Angeles Superior Court website–FX’s motion to strike was denied by Judge Holly Kendig on September 30, but on October 10, FX filed an appeal.

The trial is still scheduled to start on November 27 as of right now, but I wanted to share the details of the pending appeal with you readers, and have a discussion about its merits.

FX asked for a motion to strike based on the fact that the case was based on protected rights. Kendig agreed, but said that de Havilland’s side could be successful in court, so she let it stand. In a declaration by James Berkley, FX’s senior research analyst for the case, FX disagrees. Berkley takes on de Havilland’s assertions that she “refused to use what she knew about the private or public lives of other actors (which was a considerable amount) to promote her own press attention and celebrity status” but “Feud creates the public impression that she was a hypocrite, selling gossip in order to promote herself at the Academy Awards.”

In his declaration, Berkley says that he has “uncovered numerous examples of [de Havilland] giving interviews in print or in video, appearing on television, and otherwise publicly discussing her life, her film career, the role of women in Hollywood, and her friendships with other Hollywood celebrities, including but not limited to her friendship with her fellow actress, Bette Davis.”


He names several online videos as examples, which I provide below. Now, readers, discussion time. Do you think these videos are examples of de Havilland “selling gossip,” or “promoting her own press attention or celebrity status?” Do the videos invalidate de Havilland’s statement, and does the appeal have merit?

Please leave comments with your thoughts, and let’s talk about this!

Backlots at the Courthouse: Olivia de Havilland DBE vs. FX

Portrait of Actress Olivia De Haviland her Two Oscars 1957


Following two days of trying to get the right LA Superior Court department, I am happy to announce that I am on the list of press to be present for the trial of Olivia de Havilland vs. FX when it takes place in Los Angeles in late November.

I am thrilled to be able to attend what will surely be a passionate and complicated proceeding. This is a case that I have been following closely, as it has a number of fascinating components. De Havilland, the plaintiff, has brought FX to trial for infringement of common law right of publicity, infringement of California’s specific right of publicity code, invasion of privacy, and unjust enrichment from Catherine Zeta Jones’ portrayal of her in Feud: Bette and Joan last year. De Havilland was not informed of the fact that she was going to be portrayed, and wasn’t compensated for a portrayal that she wouldn’t have consented to.

FX counters that their First Amendment rights to freedom of expression extend to this situation, and requested that the Los Angeles Superior Court throw out the suit based on the fact that it was based on protected rights. In late September, that request was thrown out. The court agreed that the suit was based on protected rights, but de Havilland’s attorneys had been successful in demonstrating that they would be successful should the case go to court. A court date was set, and the trial is moving forward.


De Havilland at the Hollywood canteen, around the time of her Warner Bros. lawsuit, 1943.

De Havilland, 101 years old and living in Paris, is no stranger to landmark lawsuits. In 1943, she singlehandedly took on Warner Bros. for contract malpractice, as they tacked time on at the end of a contract as punishment for roles turned down. Citing a California law that no employer could hold an employee for more than 7 calendar years, she was successful and the suit became the landmark entertainment law known as the De Havilland Decision. It has been referenced in many entertainment cases since, keeping employers of actors, writers, musicians, and athletes in check.

Feud: Bette and Joan creates a number of fictional situations involving de Havilland, including an instance where she refers to Joan Fontaine as her “bitch sister” and says that she doesn’t “play bitches.” This wording seems to be a central part of de Havilland’s case, saying that showing her using such language is damaging to her reputation. The case document says:

“This is false. Olivia de Havilland never called her sister a ‘bitch’ as portrayed in Feud and certainly not to a director. Putting these false words into Olivia de Havilland’s mouth in a documentary format, designed to appear real, has caused Olivia de Havilland commercial and private damage to her reputation. Again, she appears to be a hypocrite, who built a public image of being a lady, not speaking in crude and vulgar terms about others, including her sister, when in private she did the opposite by freely speaking unkindly about others. This is patently false.”

A number of months ago, before the suit was brought, Ryan Murphy, the producer of Feud, was asked about why he didn’t inform de Havilland of the forthcoming show that featured her likeness. He responded that he didn’t want to bother her.


Last year, at 100.

To my mind, de Havilland’s suit not only brings to light what she feels is unfair treatment, but also draws attention to what happens to the elderly on a far too frequent basis. Assuming that she was too old or too far away to care, Murphy acted without her permission. De Havilland is still vibrant enough to be able to stand up and fight for herself, while so many aren’t.

The trial begins November 27, and is expected to last 7-8 court days (Monday-Friday). I will go down to Los Angeles for the final few days of the trial, in order to get the build-up to the final verdict, and then the verdict itself. For the first part of it, I will be sent press releases by the court and will update Twitter and the blog each day with the day’s happenings. Stay tuned!