Dame Olivia de Havilland is to attempt to appeal to the US Supreme Court in her claim against channel FX and Ryan Murphy Productions over the depiction of her character, played by Catherine Zeta-Jones (above), in the hit docudrama Feud: Bette And Joan, also starring Jessica Lange as Joan Crawford, and Susan Sarandon as Bette Davis.
Lawyers acting for the 102 year old grande dame of Hollywood have filed a petition with the Court, asking it to re-examine the California Court of Appeal’s previous decision to dismiss her claims.
“The Court of Appeal’s decision is a radical departure from traditional First Amendment precedent, and benefits no group other than those who seek to use the names and identities of others in untrue and salacious ‘historical dramas’ for their own profit,” said de Havilland’s attorney.
The further appeal, which will be the end of the line for her claim if it is not granted permission by the Court, follows a decision in July by the Californian Supreme Court to deny de Havilland’s petition to that body over an earlier decision dismissing her case.
As reported previously in zoom-in, the Oscar-winning actor and star of Gone With the Wind had brought a claim seeking damages as well as an injunction to stop the show being broadcast.
She claimed that her name and likeness were used to promote the series without her permission, and that it damaged her reputation by portraying her as a gossip and a hypocrite.
De Havilland particularly objected to parts of the show which showed her making jokes about Frank Sinatra’s drinking, and calling her sister and rival, Joan Fontaine, a “bitch.”
In August 2017, a judge turned down FX’s attempt to have the case thrown out under California’s anti-SLAPP rules (which protect defendants from so-called ‘Strategic Lawsuits Against Public Participation’ aimed to prevent free speech) and decided it should proceed because there was a chance that de Havilland could win the claim.
FX appeared in the California Court of Appeals to try and get the ruling overturned and the appeal court reversed the judge’s decision less than a week later.
The appeal court referred to the First Amendment protection accorded to those in the creative industries who ‘take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays.’
Underlining the decision’s relevance to the docudrama model, the Court said that whether a person in an expressive work is a world-renowned film star or someone that no-one knows, she does not have ‘the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people’.
The California Supreme Court then turned down a request to have that decision reconsidered, leaving the highest court in the United States, the United States Supreme Court, as the only route for de Havilland to have her claim proceed to trial.
Feud creator Ryan Murphy previously called the reversal on appeal ‘a victory for the creative community, and the First Amendment…’ He went on to say that the dismissal ‘gives all creators the breathing room necessary to continue to tell important historical stories inspired by true events.’
De Havilland’s claim, and the prospect of an intervention by the Supreme Court, poses a threat to shows that walk the line between fact and fiction, but the case faces a formidable obstacle in the form of the protection afforded to speech by the First Amendment.