Olivia de Havlland, 101, "Miss Melanie," Loses Her Appropriation Suit Against FX For "Feud"

Olivia de Havilland, 101 years old, the legendary two-time Oscar-winning actress who played Melanie Wilkes in "Gone With the WInd" had her suit against the FX Network dismissed.  The suit alleged that the film produced by FX, "Feud: Bette and Joan," about the strained relationships between Bette Davis and Joan Crawford used Ms. de Havilland's name and image without her permission.  Ms. de Havilland alleged in her suit that the film depicted her inaccurately and no one from Fox had contacted her for permission. Ms. De Havilland alleged that the film depicted her as a gossiping, vulgar person when, as the suit noted, she is known for her "honesty, integrity, and good manners." 

Courts have traditionally relied on the First Amendment in this biographical types of films because of the need for interpretive history in presenting life stories. The case is particularly relevant because of the current crop of biographical films about which those depicted have raised questions of accuracy.  ("I, Tonya" and "Darkest Hour"). Ms. de Havilland has lived a different Hollywood life, remaining quiet about her personal life and never agreeing to cooperate in any biographical projects.  She has only been to court one other time, when she was 28 years old and sued to get out of her studio contract with Warner Brothers.  She had signed the contract in 1936 with the studio, but she refused to participate in certain films that the studio wanted her to do.  Each tie that she refused to appear in films, which she found to be of lesser quality, Warner Brothers tacked on additional time to her contract.  The end result of that case was a victory for Ms. de Havilland and the "de Havilland law," its name, a statute that prohibits personal services contracts for longer than 7 years.  Paul Brownfield, "Hollywood Legend Heads to Court," New York Times, March 4, 2018, p. SS1. 

Ms. de Havilland was not successful this time. The suit survived a motion to dismiss by FX under the so-called anti-SLAPP law.  The California statute, Strategic Lawsuits Against Public Participation, was passed to allow defendants to have suits dismissed that result in a chilling effect on First Amendment rights.  Many predicted that the suit would be dismissed.  However, the trial judge permitted the suit to go forward because it was based on Ms. de Havilland's right of privacy.  On appeal. the California appellate court held that, "Books, films, plays, and television shows often portray real people.  Some are famous and some are just ordinary folks.  Whether a person portrayed in one of these expressive works is a world-renowned film star -- "a living legend"-- or a person no one knows, she or he does not own history." FX Networks, LLC v. de Havilland, 2018 WL 44732 (Cal. App. 2018). 

Lawyers for FX, who were joined in amicus briefs by Motion Picture Association of America and Netflix, called the decision a victory for the First Amendment and the creative community.  The Screen Actors Guild (SAG) had filed an amicus brief in support of Ms. de Havilland's position.  The decision permits film makers to proceed with biographical depictions despite challenges from the subjects.  Ms. de Havilland, who was portrayed by Catherine Zeta-Jones in the film took issue with an interview shown in the film that depicted her as called her sister, Joan Fontaine, a name.  Ms. de Havilland said the interview never occurred and that FX fact checkers had done spotty work in their research.  Ms. de Havilland also took issue with some of the scenes that depicted her with Bette Davis.  Ms. de Havilland has called Ms. Davis a "dear friend" and did not feel that the film did justice to their strong friendship. 

For now, history in cinema, whether true or false, good or bad, stands protected under the First Amendment and does not require permission of the subjects depicted.  Ms. de Havilland, and her estranged sister, Joan Fontaine, were given the title 'f "dame" by Queen Elizabeth to honor the sisters for their contributions to drama. The two sisters were born in England and then raised in Northern California. 

DISCUSSION STARTERS

Explain the legal rights at odds in the suit Ms. de Havilland filed.

Discuss the implications for historical biographies if Ms. de Havilland had won her case.