United States: Olivia de Havilland's Right-To-Publicity Suit Is Gone With The Wind

SCOTUS denies Hollywood royalty a starring role

The Dark Mirror

Ryan Murphy's presence in our culture is virtually inescapable. Chances are he's the creator, producer, writer or director of at least one show or movie you've seen – his credits include Glee, American Horror Story, Nip/Tuck, The People v. O. J. Simpson and Eat Pray Love, among many, many others.

Murphy's critically acclaimed miniseries Feud: Bette and Joan explored the fractious relationship between Hollywood icons Bette Davis and Joan Crawford, beginning with What Ever Happened to Baby Jane? The show had real celebrity firepower – Jessica Lange and Susan Sarandon played Crawford and Davis, respectively – and proved a ratings success, winning 2.25 million viewers when it aired on FX in March 2017.

Lady in a Rage

But Hollywood legend Olivia de Havilland, who was portrayed by Catherine Zeta-Jones in Feud, was not a fan of the show. De Havilland felt that the show undermined her professional reputation, which was built up over an eight-decade career in show business. She sued FX Networks and Ryan Murphy Productions in California State Superior Court over the movie's portrayal of her as a gossip in the thick of the Davis/Crawford war. "A key reason for the public's deep respect for Olivia de Havilland," her complaint reads, "is that ... she has steadfastly refused to engage in typical Hollywood gossip about the relationships of other actors."

De Havilland claimed that the documentary-style Feud unfairly gave the lie to that reputation by presenting true, real-life details (the producers apparently got the details right on the hair, gown and jewelry she wore to the 1978 Academy Awards) alongside statements that the actress claims she never made. "FX defendants' portrayal of Olivia de Havilland in 'Feud' creates the public impression that she was a hypocrite, selling gossip in order to promote herself at the Academy Awards," the suit maintained. "This did not happen and was false."

The Takeaway

De Havilland sued FX and Ryan Murphy Productions for infringement of the statutory right of publicity and common-law tort of misappropriation, false light invasion of privacy, and unjust enrichment, claiming that the show itself was not protected First Amendment speech, and that her name, likeness and identity had been used without her permission.

FX moved to strike the complaint under California's anti-SLAPP statute, which was designed to prevent litigation that chills free speech. But the court denied FX's motion, maintaining that the production was not entitled to First Amendment protection because it attempted to portray de Havilland realistically and was not sufficiently transformative. FX appealed to the California State Supreme Court.

In March 2018, the California Court of Appeal for the Second District upheld FX's motion – arguing from a 2016 Ninth Circuit Court of Appeals decision that Feud "is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists 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."

In July, after the California Court of Appeal refused to review her case, de Havilland petitioned the United States Supreme Court for review. "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 lawyer Suzelle Smith in a statement released in early October.

On Jan. 7, 2019, the Supreme Court denied certiorari to de Havilland, bringing this high-profile case to a less-than-dramatic halt. But not so fast, advertisers – keep in mind that this case is about editorial, not commercial, speech. Advertisements have a far lower level of First Amendment protection, and lately, advertisers are typically on the losing end of rights of publicity cases.

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