When Dame Olivia de Havilland sued FX Networks for portraying her without permission in a docudrama about the rivalry between Bette Davis and Joan Crawford, it was a big ask of a judge to restrict the studio’s artistic expression.
Her surprise victory — she defeated FX Networks’ bid to throw out her claims — has lit a fire under makers of biopics, who see an existential threat to one of Hollywood’s most lucrative genres.
De Havilland, 101, took offense to her portrayal in “Feud: Bette and Joan” as a “vulgar” gossip monger who refers to her sister Joan Fontaine as a “bitch.” The Oscar-winning actress, who starred in classics including “Gone with the Wind” and “The Adventures of Robin Hood,” sued the 21st Century Fox Inc. unit last year for using her likeness without permission and making her look bad.
The main movie studios and Netflix have closed ranks in their support of FX Networks’ bid to overturn the Sept. 29 ruling by a Los Angeles judge, saying it “threatens to doom entire genres of fact-based motion pictures, including docudramas and biopics.” Lawyers and constitutional experts agree.
In 2017 alone, “Golden Globe and Academy Awards nominees brim with docudramas about or inspired by real events and real people who are still living,” the Motion Picture Association of America and Netflix said in a filing with the California Court of Appeals in Los Angeles.
Those productions include 21st Century Fox’s “The Post” about the Pentagon Papers, Warner Bros.’ World War II epic “Dunkirk,” and the Netflix series “The Crown” about Queen Elizabeth II.
The judge’s ruling goes against long-established First Amendment protection for books, films and newspapers articles about real people, according to a group of constitutional law professors who have joined the fray.
“Under the court’s logic, all unauthorized biographies would be unlawful,” the legal scholars said in a filing. “If the law mandated that all living persons must give permission before they could be depicted in documentaries, docudramas, and works of fiction, they they would have the right to refuse permission unless the story was told ‘their way.”’
The appellate panel in Los Angeles will hear arguments from attorneys for de Havilland and the movie industry Tuesday.
According to de Havilland’s complaint, during her 80-plus years as an actress, she has steadfastly refused to engage in typical Hollywood gossip about the relationships of other actors.
“She did not give any interviews about the strained relationship of Bette Davis and Joan Crawford during their lives or after their deaths, despite the fact that she was very close to Ms. Davis, having starred in four films together,” according to her complaint.
Yet, in “Feud,” de Havilland, played by Catherine Zeta-Jones, gives an interview at the 1978 Academy Awards about the rivalry between Crawford and Davis. Those remarks are false and salacious comments, according to de Havilland’s complaint.
There are serious implications to letting de Havilland’s “false light” claim proceed on the grounds that the 1978 interview didn’t really take place, according to the MPAA and Netflix. The use of a fictionalized interview is a commonly used story-telling technique and movie and TV writers can’t present every moment with 100 percent literal accuracy, they argue.
De Havilland may have a slightly stronger case on her claims that her depiction in the 2017 biopic was defamatory, according to Robert Schwartz, a lawyer with Irell & Manella in Los Angeles who isn’t involved in the case. The appeals court may let her go to trial to try to show there was a willful disregard of the truth or malice in her portrayal, Schwartz said.
Lawsuits over the depiction of real-life people in movies and other media are nothing new, whether it’s Lindsay Lohan suing Take Two Interactive Software Inc. for including a lookalike model in “Grand Theft Auto V” or an Iraq war veteran suing the makers of “The Hurt Locker” for using his life story without his permission.
Unlike lawsuits over use of a celebrity’s likeness in a commercial without their permission, however, allegations over their unauthorized inclusion in creative works typically don’t get far in court, according to Schwartz.
One notable and unlikely recent exception was the lawsuit brought by convicted ax-murderer Christopher Porco against Lifetime Entertainment over a biopic about his attack on his father and mother. A New York appellate court last year reinstated Porco’s claims that his right to privacy was violated because the TV movie, “Romeo Killer: The Christopher Porco Story,” was allegedly fictionalized to a degree that it wasn’t newsworthy.
Regarding de Havilland, Schwartz said “it’s stunning that a judge would rule that a filmmaker or author needs to get permission from someone to incorporate them in a movie or book.”
“If we live in a sane world, and that’s a big if nowadays, the court should issue a strongly worded order overturning this decision,” he said.