Catherine Zeta-Jones as Olivia de Haviland in the award-winning FX Networks series, "Feud: Bette and Joan." Photo from FX Networks.
Catherine Zeta-Jones as Olivia de Haviland in the award-winning FX Networks series, “Feud: Bette and Joan.” Photo from FX Networks.

Friend-of-the court briefs have been filed with a state appeals court, where FX Networks is urging that Olivia de Havilland’s lawsuit alleging the studio falsely portrayed her in an anthology series about the feud between fellow actresses Bette Davis and Joan Crawford be dismissed.

One of the briefs submitted to the 2nd District Court of Appeal was co- authored by law professors Jennifer Rothman of Loyola Law School and Eugene Volokh of the UCLA School of Law. They say the 2017 decision by Los Angeles Superior Court Judge Holly Kendig allowing the suit’s right-of-publicity claim to proceed must be overturned.

A friend-of-the-court brief is a document submitted by an individual or group interested in influencing the outcome of a lawsuit.

“Depictions of real people in books, newspapers and films have long been understood to be protected by the First Amendment,” the professors state. “Under the trial court’s logic, all unauthorized biographies would be unlawful, including traditional written biographies.”

If the law required that all living persons give permission before they could be depicted in documentaries, docudramas and works of fiction, they would have the right to refuse permission unless the story was told their way, according to Rothman and Volokh.

“The First Amendment bars the right of publicity from granting a right to control the celebrity’s image by censoring disagreeable portrayals,” the professors say.

The professors do not take a position on de Havilland’s defamation and false-light claims.

Other groups who have come out in support of the appellants include A&E Television Networks LLC, Discovery Communications LLC, the Reporters Committee for Freedom of the Press and the First Amendment Coalition.

In her September ruling, Kendig said that although the series “Feud: Bette and Joan” was aired in the public forum of television and dealt with a subject of public interest, de Havilland still showed a likelihood of “prevailing on the merits.”

Kendig also found that de Havilland — who under the law is a public figure — showed that the network either knew that aspects of the series were false, or did not care whether they were true or not.

The judge cited four examples, including a depiction of a 1978 Academy Awards interview in which de Havilland disparaged Davis and Crawford. Kendig said the evidence showed the interview never took place.

Kendig also said de Havilland was falsely portrayed as someone who was a “gossip” and who used vulgar language against others, including her sister, Joan Fontaine, and that she had made disparaging remarks about Frank Sinatra’s drinking habits.

Kendig said she disagreed with the defense that the series was “transformative” and said there was evidence the network benefited financially from the use of de Havilland’s name. She additionally said that because the 101-year-old de Havilland is still alive, she could have been asked about the accuracy of some of the matters now in dispute.

De Havilland filed suit June 30. Her 49 feature film roles included portraying Melanie Hamilton in “Gone with the Wind.”

Catherine Zeta-Jones portrayed de Havilland in the series, which starred Jessica Lange as Crawford and Susan Sarandon as Davis.

Crawford died in May 1977 and Davis in October 1989.

A two-time Academy Award winner for her lead roles in “To Each His Own” and “The Heiress,” de Havilland “has built a professional reputation for integrity, honesty, generosity, self-sacrifice and dignity,” according to her complaint. “A key reason for the public’s deep respect for Olivia de Havilland is that in her 80-plus year career, she has steadfastly refused to engage in typical Hollywood gossip about the relationships of other actors.”

–City News Service

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