By RJ Vogt
(Law360, Los Angeles)
Four groups of amici, with members including the MPAA, Netflix and A&E, told a California appeals court Thursday that FX’s “Feud: Bette and Joan” show is protected from Olivia de Havilland’s false light and right of publicity claims under the First Amendment, while SAG filed a bid to support the 101-year-old actress.
Netflix Inc. and the Motion Picture Association of America Inc. said in their request to file an amicus curiae brief in support of FX Networks LLC and Pacific 2.1 Entertainment Group Inc. that screenwriters need the freedom to make compelling work without fear of liability in order to produce docudramas like “Feud,” which by design do not portray individuals or events literally.
The Screen Actors Guild-American Federation of Television and Radio Artists, on the other hand, said in its request that because Havilland is still alive, the creators had a responsibility to ensure it didn't dishonor her reputation.
A lower court had agreed to let de Havilland’s suit continue in September after finding FX rearranged timelines, made up dialogue and failed to get her consent, but Netflix and the MPAA argued in Thursday’s filing that the trial court’s analysis creates an “untenable Catch-22” where too-realistic docudramas can be accused of violating subjects’ right of publicity while those deemed too dramatic are actionable under false light.
“Affirming the trial court’s analysis — an unprecedented deviation from decades of case law protecting freedom of expression from state tort law claims — threatens to doom entire genres of fact-based motion pictures, including docudramas and biopics,” the filing said.
“Feud” was created by producer Ryan Murphy to tell the story of the historic Hollywood rivalry between Bette Davis and Joan Crawford when they were making the 1962 film “What Ever Happened to Baby Jane?”
De Havilland, who first sued in June, claims the show wrongfully showed her as the kind of person who engaged in “gossipmongering” about other actors — including calling her sister, Joan Fontaine, a “bitch.”
Other scenes at issue include a 1978 red carpet interview that allegedly never occurred and a dig at Frank Sinatra’s alcoholism that de Havilland, who is played by Catherine Zeta-Jones, says never happened.
After FX lost its bid to kill the suit in September, the network quickly appealed, noting that due to de Havilland’s age, it would pursue speedy proceedings.
That took the case to California’s Court of Appeal, where Netflix and the MPAA argued in Thursday’s filing that in order to be found in violation of false light claims, de Havilland should’ve passed the actual malice standard and shown that FX and Pacific 2.1 intended the defamatory portrayal and had actual knowledge of the falsity portrayed.
“There is absolutely no evidence here that Feud’s creators ever intended to portray Ms. de Havilland as a gossip, nor even any evidence that they had any inkling that the mere portrayal of her character giving fictional interviews (which was clearly intended to be a thematic framing device) would even be interpreted as implying that Ms. de Havilland was a gossip,” Netflix and the MPAA said.
They also said the First Amendment provides docudramas “robust protection” against right of publicity claims like de Havilland’s because the medium is “vital to public discourse in a free society.”
But according to counsel for the actress Suzelle Smith of Howarth & Smith, the position Netflix and MPAA have taken is “near-extra-terrestrial.” She told Law360 on Friday that sensationalized, reckless falsehoods are not protected by the Bill of Rights, nor is achieving increased ratings a justification for violating the law.
“What is at stake here is not freedom of genuine honest expression, but whether the industry can take for itself valuable property rights belonging to the living owner of a famous name and simultaneously dishonor her by putting falsehoods in her mouth,” Smith said.
Smith added that her client appreciates the amicus support of SAG-AFTRA, which filed a proposed amicus brief the same day Netflix and the MPAA filed theirs.
In SAG’s filing, the union said the First Amendment does not provide absolute protection and must be balanced against other rights. Although SAG did not take a position on the specific facts of de Havilland’s case, the group said the show’s creators could not claim their version of the actress was so transformative that she herself has no grounds to claim right of publicity.
“No matter how much labor and art went into this [production], its purpose was to transform the appearance of the actress portraying Dame de Havilland to better resemble Dame de Havilland,” SAG said. “It was not done to transform a loose depiction of Dame de Havilland into something new.”
In addition to SAG, Netflix and MPAA, three other groups requested permission to file amicus briefs in the closely watched case. On Wednesday, a group of intellectual property and constitutional law professors asked to weigh in and support FX, while Thursday saw an additional request in support of FX filed by a group comprising the Electronic Frontier Foundation, the Organization for Transformative Works and the Wikimedia Foundation.
A group including A&E Television Networks LLC, Discovery Communications LLC, Imperative Entertainment LCC, Urban One Inc., Critical Content LLC, the Reporters Committee for Freedom of the Press and the First Amendment Coalition also filed a proposed amicus brief supporting the show’s creators on Thursday.
Counsel for FX and Pacific 2.1 did not immediately respond to a request for comment on Friday.
Counsel for the amici groups supporting FX also did not immediately respond to requests for comment, nor did counsel for SAG.
De Havilland is represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.
FX Networks LLC and Pacific 2.1 Entertainment Group Inc. are represented by Glenn D. Pomerantz of Munger Tolles & Olson LLP.
The MPAA and Netflix are represented by Frederic D. Cohen and Mark A. Kressel of Horvitz & Levy LLP.
SAG is represented by its General Counsel Duncan W. Crabtree-Ireland.
A&E Television Networks LLC, Discovery Communications LLC, Imperative Entertainment LCC, Urban One Inc., Critical Content LLC, the Reporters Committee for Freedom of the Press and the First Amendment Coalition are represented by Rochelle L. Wilcox of Davis Wright Tremaine LLP.
The Electronic Frontier Foundation, the Organization for Transformative Works and the Wikimedia Foundation are represented by Daniel K. Nazer of the Electronic Frontier Foundation.
The group of professors is represented by Jennifer E. Rothman of Loyola Law School, Los Angeles, and Eugene Volokh of UCLA School of Law.
The case is FX Networks LLC et al. v. Olivia de Havilland, number B285629, in the California Court of Appeal, Second Appellate District.