By Daniel Holloway
(Variety)
Olivia De Havilland’s attorney argued Tuesday that there is a significant difference between the actress calling her sister a “bitch” and calling her sister a “dragon lady.”
Attorneys for De Havilland and for the cable channel FX appeared at a California Court of Appeal hearing to argue whether the actress’ lawsuit against producers of the miniseries “Feud: Bette and Joan” can move forward. A state superior court judge in August turned down FX’s request to have the suit thrown out. FX appealed, leading to Tuesday’s hearing. FX wants the suit tossed under California’s anti-SLAPP statute, claiming that the suit could have a chilling affect on free speech.
The plaintiff’s lawyer complained that De Havilland is portrayed as a gossip who spoke casually and disparagingly of friends and acquaintances such as Bette Davis, Joan Crawford, Frank Sinatra, and her sister, Joan Fontaine. A key issue, acknowledged Tuesday by both sides, was the use twice by De Havilland’s character — played in the series by Catherine Zeta-Jones — of the word bitch in reference to Fontaine. De Havilland’s lawyer argued that no record exists of De Havilland ever using the word, much less to identify Fontaine. FX’s lawyer cited on-the-record comments that De Havilland has made referring to Fontaine as a “dragon lady.”
Judge Halim Dhanidina, one of three judges on the panel, asked De Havilland’s attorney, “Is there a substantial difference between calling someone a bitch and calling her a dragon lady?” drawing laughter. De Havilland’s attorney replied, “Yes, there is, your honor,” adding, “In my household, if you say the word ‘bitch,’ you get your mouth washed out.”
De Havilland’s attorney argued that FX violated De Havilland’s publicity rights as a celebrity. She said that FX profited by having “honest, closed-mouthed, ladylike Olivia De Havilland” say that Crawford and Davis “hated each other and we loved them for it,” disparage Fontaine, and joke about Frank Sinatra’s drinking.
De Havilland’s attorney also dismissed the argument, asserted by FX, that such artistic liberties in a docudrama like “Feud” are protected free speech under the First Amendment and that to side with De Havilland would effectively destroy the ability of filmmakers to create such docudramas.
“Of course we will still have docudramas,” the attorney said. “What we need to have are docudramas that don’t defame, that don’t tell lies.”
Justice Lee Smalley Edmon responded, “How is that not censorship?” The attorney replied that it is not censorship because docudramas that don’t portray events in a way that is “intentionally false” would be protected. When Edmon asked whether the producers of “American Crime Story: The People v. O.J. Simpson” would have needed to gain Judge Lance Ito’s permission before producing a series that presents a reasonably accurate portrayal of Ito. De Havilland’s attorney responded that the First Amendment would protect an accurate portrayal.
FX’s attorney argued that the use of the word “bitch” by the De Havilland character in “Feud” is neither overly obscene nor out-of-character for the real-life De Havilland. He cited a reference in Shaun Considine’s book “The Divine Feud” to De Havilland using the word, allegedly saying “I don’t like to play bitches.” In “Feud,” the De Havilland character says a similar line, then adds “call my sister.”
“The show simply does not portray Ms. De Havilland as a vulgarian,” the FX attorney said. He noted that the De Havilland character is only on screen in 18 of the series’ 402 minutes, and is shown for the most part as being a supportive friend and confidante to Davis. He added that producers had changed “dragon lady” to “bitch” in another piece of dialogue because they felt the two words were synonyms and that “bitch” would resonate more with a contemporary audience. He also argued that De Havilland’s attorneys have failed to show necessary malice on the part of FX and the producers.
The court did not make a decision on whether or not the suit will move forward.
De Havilland, who is 101, sued FX in June, objecting to her portrayal in the Ryan Murphy series. In January, the MPAA joined with FX, urging the appellate court to overturn the superior court decision and throw out the suit. In their brief, the MPAA’s lawyers argued that they “cannot overstate the serious implications of the trial court’s ruling” for filmmakers who draw on real events for fictionalized works.
Tuesday’s hearing, through a quirk of scheduling, took place at the USC Gould School of Law, part of a program in which, once a year, the appeals court holds hearings on the USC campus in front of an audience of first-year law students, who are required to attend. De Havilland’s attorney began her argument by saying, “Olivia De Havilland is still alive,” noting that many of the students in attendance may not be aware of that fact.