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Olivia De Havilland Can move forward with her lawsuit against FX Network (1 Viewer)

TonyD

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http://deadline.com/2018/03/olivia-de-havilland-feud-fx-appeal-court-california-hearing-1202346071/

“The California Court of Appeal will hear arguments today over whether Olivia de Havilland can proceed with her lawsuit against the FX Network and Ryan MurphyProductions over her portrayal in the FX series Feud, depicting the rivalry between Bette Davis and Joan Crawford.

The Oscar-winning actress objected to her portrayal by actress Catherine Zeta-Jones, claiming her name and likeness were used to promote the docudrama without her permission and that the series damaged her reputation by casting her in a false light as a hypocrite “selling gossip in order to promote herself at the Academy Awards, criticizing fellow actors, using vulgarity and cheap language.” She took particular issue with Zeta-Jones’ de Havilland referring to Joan Fontaine as her “bitch sister.”

“That kind of vulgarity is not language that I use,” the 101-year-old actress said in a deposition taken last summer in Paris.

The network attempted last August to have the claim dismissed under California’s anti-SLAPP statute, which throws out lawsuits that would chill free speech. One month later, Los Angeles Superior Court Judge Holly Kendig allowed the case to proceed — saying de Havilland’s attorneys demonstrated she might well succeed in winning the case.

That decision set off alarms in Hollywood, which feared the case could set a dangerous precedent that would jeopardize any film, TV show or other creative work that seeks to dramatize real people or events.

The MPAA joined with Netflix joined together in a friend of the court brief to argue that the trial court’s ruling would allow a celebrity’s publicity rights — which court have limited to advertising and merchandising — to trump free expression. That marks a radical departure from decades of case law, they argued, and would leave filmmakers, writers and producers exposed to liability if they depart, even slightly, from the literal facts of the historical record and failed to obtain the permission of their subjects.

That’s a chilling precedent for less-than-flattering portrayals of actual people, like Allison Janey’s Oscar-winning performance in the role of LaVonda Golden, the mother of figure skater Tonya Harding, in I, Tonya.

“If creators of expressive works that dramatize stories about real people can face actionable right of publicity claims unless they obtain the consent of everyone relevant to the story, fictionalized stories about real people will be stifled by censorship attempts launched by our most popular, powerful, and controversial celebrities and politicians—and limited to depicting only their (likely highly sanitized)—version of events,” the MPAA and Netflix wrote in a brief.

The Court of Appeal will review that ruling today in a hearing on the campus of the University of Southern California.
 

TonyD

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This article from Bloomberg might explain it better.



“When Dame Olivia de Havilland sued FX Networks for portraying her without permission in a docudrama about the rivalry between Bette Davis and Joan Crawford, it was a big ask of a judge to restrict the studio’s artistic expression.



Her surprise victory -- she defeated FX Networks’ bid to throw out her claims -- has lit a fire under makers of biopics, who see an existential threat to one of Hollywood’s most lucrative genres.



De Havilland, 101, took offense to her portrayal in “Feud: Bette and Joan” as a “vulgar” gossip monger who refers to her sister Joan Fontaine as a “bitch.” The Oscar-winning actress, who starred in classics including “Gone with the Wind” and “The Adventures of Robin Hood,” sued the 21st Century Fox Inc. unit last year for using her likeness without permission and making her look bad.



The main movie studios and Netflix Inc. have closed ranks in their support of FX Networks’ bid to overturn the Sept. 29 ruling by a Los Angeles judge, saying it “threatens to doom entire genres of fact-based motion pictures, including docudramas and biopics.” Lawyers and constitutional experts agree.



In 2017 alone, “Golden Globe and Academy Awards nominees brim with docudramas about or inspired by real events and real people who are still living,” the Motion Picture Association of America and Netflix said in a filing with the California Court of Appeals in Los Angeles.

Books, Films
Those productions include 21st Century Fox’s “The Post” about the Pentagon Papers, Warner Bros.’ World War II epic “Dunkirk,” and the Netflix series “The Crown” about Queen Elizabeth II.

The judge’s ruling goes against long-established First Amendment protection for books, films and newspapers articles about real people, according to a group of constitutional law professors who have joined the fray.

“Under the court’s logic, all unauthorized biographies would be unlawful,” the legal scholars said in a filing. “If the law mandated that all living persons must give permission before they could be depicted in documentaries, docudramas, and works of fiction, they they would have the right to refuse permission unless the story was told ‘their way.”’

The appellate panel in Los Angeles will hear arguments from attorneys for de Havilland and the movie industry Tuesday.

‘False’ Comments
According to de Havilland’s complaint, during her 80-plus years as an actress, she has steadfastly refused to engage in typical Hollywood gossip about the relationships of other actors.

“She did not give any interviews about the strained relationship of Bette Davis and Joan Crawford during their lives or after their deaths, despite the fact that she was very close to Ms. Davis, having starred in four films together,” according to her complaint.

800x-1.jpg

Catherine Zeta-Jones

Photographer: D Dipasupil/FilmMagic
Yet, in “Feud,” de Havilland, played by Catherine Zeta-Jones, gives an interview at the 1978 Academy Awards about the rivalry between Crawford and Davis. Those remarks are false and salacious comments, according to de Havilland’s complaint.

There are serious implications to letting de Havilland’s “false light” claim proceed on the grounds that the 1978 interview didn’t really take place, according to the MPAA and Netflix. The use of a fictionalized interview is a commonly used story-telling technique and movie and TV writers can’t present every moment with 100 percent literal accuracy, they argue.

Defamation Claims
De Havilland may have a slightly stronger case on her claims that her depiction in the 2017 biopic was defamatory, according to Robert Schwartz, a lawyer with Irell & Manella in Los Angeles who isn’t involved in the case. The appeals court may let her go to trial to try to show there was a willful disregard of the truth or malice in her portrayal, Schwartz said.

Lawsuits over the depiction of real-life people in movies and other media are nothing new, whether it’s Lindsay Lohan suing Take Two Interactive Software Inc. for including a lookalike model in “Grand Theft Auto V” or an Iraq war veteran suing the makers of “The Hurt Locker” for using his life story without his permission.

Unlike lawsuits over use of a celebrity’s likeness in a commercial without their permission, however, allegations over their unauthorized inclusion in creative works typically don’t get far in court, according to Schwartz.


One notable and unlikely recent exception was the lawsuit brought by convicted ax-murderer Christopher Porco against Lifetime Entertainment over a biopic about his attack on his father and mother. A New York appellate court last year reinstated Porco’s claims that his right to privacy was violated because the TV movie, “Romeo Killer: The Christopher Porco Story,” was allegedly fictionalized to a degree that it wasn’t newsworthy.

Regarding de Havilland, Schwartz said “it’s stunning that a judge would rule that a filmmaker or author needs to get permission from someone to incorporate them in a movie or book.”

“If we live in a sane world, and that’s a big if nowadays, the court should issue a strongly worded order overturning this decision,” he said.

The case is de Havilland v. FX Networks LLC, B285629, California Court of Appeals, Second Appellate District, Division Three (Los Angeles).
 

TravisR

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By that logic, O.J. Simpson and Andrew Cunanan should be able to sue FX and Murphy because of the portrayals of them too. Richard Nixon's family and everyone involved with Watergate should be able to sue Oliver Stone and Disney over Nixon. With the hundreds of representations of them over the years, the descendants of Lee Harvey Oswald and John Wilkes Booth should be looking at some serious money.
 

Adam Lenhardt

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I still think Ryan Murphy et al. didn't realize she was still alive, or they would have tried to come to some arrangement beforehand.
By that logic, O.J. Simpson and Andrew Cunanan should be able to sue FX and Murphy because of the portrayals of them too. Richard Nixon's family and everyone involved with Watergate should be able to sue Oliver Stone and Disney over Nixon. With the hundreds of representations of them over the years, the descendants of Lee Harvey Oswald and John Wilkes Booth should be looking at some serious money.
The right of publicity is handled differently from state to state. Where is usually comes into play is when a company or retailer uses a famous person's likeness to sell a product without that person's authorization.

Nixon's estate would have the weakest case, because there are broad carve outs protecting political speech.

I think de Havilland has a weak case on this front, because I don't buy the argument that her likeness was used to promote the series.

I think she's got a stronger case when it comes to defamation. Because the Goldman family prevailed in their wrongful death lawsuit against Simpson, FX could make a strong case that its portrayal was not defamatory since the facts support it. In the case of de Havilland, she's arguing that the show has defamed her by portraying her in a negative light that is not supported by the facts. It's a high bar for her to reach, but I'm not sure she won't.

Crass as it is to say, I bet Ryan Murphy Productions and FX tie this up as long as they can in pre-trial motions, hoping she croaks before they have to put it in front of a jury, and that her estate doesn't have the same appetite for fighting it.
 

Bob Cashill

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This isn't her first time at the rodeo. The De Havilland Law (1944) is still very much in use: https://en.wikipedia.org/wiki/De_Havilland_Law

Murphy & co. clearly knew she was alive, but figured, incorrectly, that she wouldn't dispute the portrayal, by another Oscar-winning actress. I doubt anyone other than de Havilland would find it defamatory, but here we are. (Bette Davis' daughter, also portrayed in the show, just let it be, so far as I know.) The weight of history favors Murphy and other biopic producers but I'm sure they are hoping to wait it out. I think she's wrong in this instance but I admire the hell out of de Havilland for her stance in the 40s, which upended the studio system. No shrinking violet she.
 

KevinGress

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I think de Havilland has a weak case on this front, because I don't buy the argument that her likeness was used to promote the series.

I think she's got a stronger case when it comes to defamation. Because the Goldman family prevailed in their wrongful death lawsuit against Simpson, FX could make a strong case that its portrayal was not defamatory since the facts support it. In the case of de Havilland, she's arguing that the show has defamed her by portraying her in a negative light that is not supported by the facts. It's a high bar for her to reach, but I'm not sure she won't.

The little bit I've read on this, I agree with Adam's assessment.

While I definitely am not in favor of stifling free speech, unless I hear/read anything to the contrary, I'm with her on this. I don't think that filmmakers should have to get everyone's permission to do a biopic, but they should be as factually accurate as possible.

If they want creative freedom, write a piece of fiction and sell that.
 

TonyD

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That’s really good to see.

Would have been crippling to the movie makers otherwise.
 

Steve...O

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I get the first amendment arguments, but I also really admire that Ms. DeHavilland is taking a stand here. At some point an individual has a right to protect their reputation when films, documentaries, etc present them in a false light. Did Feud cross that point? That's for the legal system to sort out, but I don't begrudge her for wanting to have her voice heard. Even if her attorneys don't prevail the publicity from this case has made her point albeit perhaps to not to as many people that saw the original series.

It's a slippery slope. If a docuseries on the making of Spartacus portrayed Kirk Douglas as a coked up serial physical abuser of fellow actors on the set, most would likely support the legal action he would certainly take. The defamation of Olivia isn't anywhere near that extreme, but is it any less injurious? That's why I am not an attorney

Just my opinion, but it would have been common courtesy for the producers to reach out to her team beforehand and at least get their reaction to her portrayal. Given all that she has contributed to the industry on and off camera she has earned that respect. Actors today owe a lot to the DeHavilland decision.
 

Adam Lenhardt

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I think the biggest problem for defamation is that she'd have trouble proving damages. She hasn't acted since 1988, so even if people believe "Feud", it'd be difficult for her to establish that she'd been materially affected by the false representation.
 

Robert Crawford

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I get the first amendment arguments, but I also really admire that Ms. DeHavilland is taking a stand here. At some point an individual has a right to protect their reputation when films, documentaries, etc present them in a false light. Did Feud cross that point? That's for the legal system to sort out, but I don't begrudge her for wanting to have her voice heard. Even if her attorneys don't prevail the publicity from this case has made her point albeit perhaps to not to as many people that saw the original series.

It's a slippery slope. If a docuseries on the making of Spartacus portrayed Kirk Douglas as a coked up serial physical abuser of fellow actors on the set, most would likely support the legal action he would certainly take. The defamation of Olivia isn't anywhere near that extreme, but is it any less injurious? That's why I am not an attorney

Just my opinion, but it would have been common courtesy for the producers to reach out to her team beforehand and at least get their reaction to her portrayal. Given all that she has contributed to the industry on and off camera she has earned that respect. Actors today owe a lot to the DeHavilland decision.
TBH, I wish "Feud" was actually about the De Havilland sisters and not Davis/Crawford.
 

Jake Lipson

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. She hasn't acted since 1988, so even if people believe "Feud", it'd be difficult for her to establish that she'd been materially affected by the false representation.

I'll admit that I didn't know she was even still alive before this. Also, contrary to her claims, I think Feud may have actually reinvigorated interest in her career. A friend of mine bought Hush Hush, Sweet Charlotte for us to watch while the show was airing, which means she would've gotten residuals from that sale. My friend would not have purchased that movie had the show not been on and dealing with its production. And I highly doubt we were the only ones whose interest was piqued by the show.
 

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