It’s not always easy being a household name. Screen legend Olivia de Havilland filed a lawsuit against FX and show creator Ryan Murphy, saying that they used her likeness without permission and should have paid her. However, the appeals court disagreed.
She appears for all of 17 minutes in the docudrama, “Feud: Bette and Joan,” but film star de Havilland does not “own history,” ruled the Second District Court of Appeals in a 38-page opinion. Screenwriters and producers breathed a sigh of relief.
The Washington Post’s recent article, “Olivia de Havilland’s lawsuit against ‘Feud’ creators gets tossed: She ‘does not own history,’” reported that the decision is a win not just for FX and Murphy, but also for all screenwriters and producers. If the court ruled in de Havilland’s favor, it could’ve meant that other public figures could file aggressive legal challenges, if they didn’t like the way they were portrayed in fictional works.
“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,” the three-judge panel ruled. “Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.”
The 101-year-old De Havilland was a product of Hollywood’s golden age, the period spanning from the end of silent films to the late 1950s. She portrayed Melanie Hamilton, Scarlett O’Hara’s sister-in-law in “Gone with the Wind,” and Maid Marian in “The Adventures of Robin Hood.” These roles paved the way for her stardom in the late-1930s, and she went on to win two Oscars.
“Feud,” which debuted in March 2017, was a dramatized version of the intense rivalry between Bette Davis and Joan Crawford during the filming of the 1962 thriller “Whatever Happened to Baby Jane?” De Havilland, a close friend of Davis, was played by Catherine Zeta-Jones. The show was nominated for 18 Emmy awards. Although the role of de Havilland was only 17 minutes of screen time in the eight-episode series, she filed suit against FX and Murphy last June, claiming that she was unfairly portrayed as a vulgar gossip-peddler and arguing they didn’t have permission to use her as a character.
The trial court allowed the case to proceed last fall, but the Court of Appeals court reversed the lower court’s ruling and ordered the case dismissed, holding that the show was constitutionally protected as a fictionalized work based on real-life events.
The First Amendment protects authors who take real-life stories and transform them into fictional works. The result may have been different if FX had used de Havilland’s name or likeness to sell physical merchandise, according to the opinion. However, in this case, FX was safe because “Feud” was “transformative.” The TV show was a creative work that drew from a variety of source material and didn’t derive its value principally from de Havilland’s celebrity.
The court description of the de Havilland character was flattering. The lengthy opinion included a description of her character as “beautiful, glamorous, self-assured and considerably ahead of her time, in her views on the importance of equality and respect for women in Hollywood.”
Despite these kind words, de Havilland’s attorney Suzelle Smith said the ruling was a “pro-industry decision” and that the actress would appeal the decision.
Reference: Washington Post (March 27, 2018) “Olivia de Havilland’s lawsuit against ‘Feud’ creators gets tossed: She ‘does not own history’”