Attorneys for FX Networks will state their case to a state appeals court Tuesday as they fight for dismissal of actress Olivia de Havilland’s lawsuit alleging the studio falsely portrayed her in a series about the feud between Bette Davis and Joan Crawford.

In September, Los Angeles Superior Court Judge Holly Kendig ruled that the legendary actress can move forward with her “right-of-publicity” lawsuit, despite network allegations that the production of “Feud: Bette and Joan” is protected by the First Amendment.

The right of publicity claim essentially alleges the network used her name and likeness without her approval to endorse a product.

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.”

In a recent email to The New York Times, de Havilland said she is pushing her case against FX because she believes it would be much more difficult for a young performer to engage in such a fight.

“I believe in the right to free speech, but it certainly must not be abused by using it to protect published falsehoods or to improperly benefit from the use of someone’s name and reputation without their consent,” she wrote. “Fox crossed both of these lines with `Feud,’ and if it is allowed to do this without any consequences, then the use of lies about well-known public figures masquerading as the truth will become more and more common.”

Attorneys representing groups such as A&E Television Networks LLC, Discovery Communications LLC, the Reporters Committee for Freedom of the Press and the First Amendment Coalition have filed court papers in support of FX. One of the filings contends that Kendig’s ruling, “all unauthorized biographies would be unlawful, including traditional written biographies.”

—City News Service

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