By Steven Trader
(Law360, New York)
Actress Olivia de Havilland on Friday defended her lawsuit against FX Networks over the hit TV show “Feud: Bette and Joan,” telling a California state judge that including her without permission and putting false and disparaging words into her mouth is not protected speech.
In an opposition brief, the two-time Academy Award winner and “Gone With The Wind” star countered the network’s argument that her lawsuit should be struck under California’s anti-SLAPP statute, which is intended to protect against suits that threaten free speech in connection with a matter of public interest, also known as a strategic lawsuit against public participation.
Instead, the 101-year-old actress said she has a high probability of succeeding on her right to publicity and false light claims, given that FX Networks LLCadmittedly used her identity without permission to its own advantage and recklessly disregarded the truth by creating fake scenes and false statements that presented her character as a gossip in the docudrama, which details the rivalry between de Havilland’s close friend Bette Davis and Joan Crawford.
“Not only are the statements and conduct that 'Feud' attributes to de Havilland false, but they were highly offensive to her,” attorneys for the actress wrote on Friday. “The statements cast de Havilland in an untrue and ill-mannered fashion, which contradicts the professional reputation built over many decades of being a loyal friend and person of integrity and restraint. They are not minor or insignificant.”
The actress’ opposition brief was accompanied by declarations from Hollywood “insiders” and experts, including former senior MGM executive David Ladd, who told the court that obtaining consent from a well-known person for use of their name, identity or character is a serious matter on the standard pre-production checklist for a film, and failure to do so would be “out of the ordinary.”
Another expert, writer and producer Cort Casady, said in a declaration that attributing false statements and inaccurate endorsements to a person portrayed in a production without their permission amounted to “production malpractice.” In a third sworn statement, another expert estimated that failing to obtain de Havilland’s consent likely cost her between $1.38 and $2.1 million.
“As our experts set out in detail, there is no way FX defendants did not know that they were violating the law; instead they chose to ignore it and roll the dice,” Suzelle Smith, an attorney for de Havilland, said in a statement. “The facts, prior precedents and expert testimony overwhelmingly support the strength of Miss de Havilland’s case.”
Despite garnering a reputation for honesty and integrity over an 80-year career in front of the camera, de Havilland said in a complaint filed in June that no one at FX asked her for permission to be portrayed in “Feud,” which explores how the on-again, off-again relationship between Davis and Crawford played out during the shooting of their 1962 film “What Ever Happened to Baby Jane?”
According to de Havilland’s counsel, the show wrongfully makes her out to be a hypocrite who dealt in gossip in order to promote herself at the Academy Awards, placing her in a false light in order to boost ratings.
FX Networks and show creator Ryan Murphy battled back in August that her lawsuit fails under the anti-SLAPP law because the show’s portrayal of the actress isn’t defamatory and was, in fact, based on meticulous research, among other arguments. The network also argued that it did not need de Havilland’s permission to include her in the show because “Feud” is an expressive TV show that concerns matters of public interest.
Because the network portrayed her as if she was endorsing “Feud” and included her in fake scenes that never actually happened, while also capitalizing on her fame by making her portrayal as authentic as possible, the public interest defense fails, the actress argued.
“The grandson of Joan Crawford, Casey LaLonde, is reported to have worked with FX and Murphy to create an accurate portrait of her character,” Smith said in a statement. “Why in the world would FX obtain the backing and apparently compensate LaLonde for use of his deceased grandmother’s identity, and consciously ignore the rights of the very much alive, Olivia de Havilland, to protect her reputation from distortion?”
A dismissal motion hearing in the case, which has been fast-tracked because of de Havilland’s age, is set for Sept. 29.
Counsel for FX and Murphy did not immediately return a request for comment.
De Havilland is represented by Suzelle Smith, Don Howarth and Zoe E. Tremayne of Howarth & Smith.
FX and the production company are represented by Robert H. Rotstein, Aaron M. Wais and Emily F. Evitt of Mitchell Silberberg & Knupp LLP.
The suit is de Havilland v. FX Networks LLC et al., case number BC667011, in the Superior Court of the State of California, County of Los Angeles.