{"id":2140,"date":"2018-11-19T08:33:51","date_gmt":"2018-11-19T13:33:51","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/jsel\/?p=2140"},"modified":"2023-07-25T11:44:00","modified_gmt":"2023-07-25T15:44:00","slug":"de-havilland-v-fx-networks-another-slapp-in-the-face","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jsel\/2018\/11\/de-havilland-v-fx-networks-another-slapp-in-the-face\/","title":{"rendered":"De Havilland v. FX Networks: Another \u201cSlapp\u201d in the Face?"},"content":{"rendered":"

\"\"<\/a><\/p>\n

On Tuesday, FX Networks filed a brief\u00a0<\/a>in opposition to Olivia de Havilland\u2019s petition for writ of certiorari, asking the Supreme Court not to hear de Havilland\u2019s case after her petition for review was rejected by the California Supreme Court<\/a> on July 11.<\/p>\n

The initial lawsuit began on June 30, 2017 when de Havilland filed suit in California state court\u00a0<\/a>in response to FX Network\u2019s hit series Feud: Bette and Joan<\/em>, which traced the historic rivalry between Bette Davis and Joan Crawford as they filmed What Ever Happened to Baby Jane?<\/em>. de Havilland asserted two separate claims\u00a0\u2014 that she was being portrayed in a false-light and that FX was violating California\u2019s right of publicity\u00a0\u2014 in response to Catherine Zeta-Jones\u2019 portrayal of her, allegedly without her permission. de Havilland\u00a0cited a specific scene where she was portrayed calling her sister a \u201cbitch,\u201d arguing that the scene was defamatory. In a public statement<\/a>, de Havilland\u2019s attorney, Suzelle Smith, said: \u201cA living celebrity has the right to protect her name and identity from unauthorized, false, commercial exploitation.\u201d<\/p>\n

In response, FX Networks filed a motion to strike the initial complaint under California\u2019s anti-SLAPP statute<\/a>, a procedural way for defendants to dismiss lawsuits brought \u201cto chill the valid exercise of a party\u2019s constitutional right of \u2026 free speech.\u201d The trial court denied FX Network\u2019s motion, holding that de Havilland had established a sufficient probability of prevailing on the merits of her suit and therefore, that the case should go to trial.<\/p>\n

FX Networks appealed\u00a0<\/a>the trial court\u2019s denial of their anti-SLAPP motion immediately and California\u2019s Court of Appeals unanimously reversed\u00a0<\/a>the trial court\u2019s decision under both California law and the First Amendment. In response to de Havilland\u2019s false-light claim, the court of appeals argued that given that Feud<\/em>was a \u201cdocudrama,\u201d no \u201creasonable viewer would interpret Feud<\/em>\u2026 as entirely factual.\u201d Even if they did, Feud<\/em>\u2019s depiction of de Havilland was not sufficiently offensive to be defamatory. Moreover, the \u201cbitch\u201d remarks were not actionable because they were sufficiently truthful<\/a>: de Havilland famously referred to her sister as a \u201cDragon Lady.\u201d Under California law, the portrayal of a public figure must be taken in its entirety and when done so, Zeta-Jones\u2019 portrayal of de Havilland was deemed \u201coverwhelming positive.\u201d Coupled with Feud <\/em>co-creator, Ryan Murphy\u2019s testimony\u00a0<\/a>that he intended Zeta Jones\u2019 portrayal to be that of \u201ca wise, respectful friend and counselor to Bette Davis, and a Hollywood icon with a unique past,\u201d the court held that de Havilland\u2019s false-light claims were insufficient.<\/p>\n

The court also determined that de Havilland\u2019s false-light claim would fail under the First Amendment. Because de Havilland\u2019s false-light claim was based on defamation by implication, under the First Amendment, actual malice must be proved (see New York Times Co. v. Sullivan\u00a0<\/em><\/a>for more information). This means that de Havilland had to show\u00a0<\/a>that FX \u201ceither deliberately cast her statements in an equivocal fashion in the hopes of insinuating a defamatory import to the viewer\u201d or that FX \u201cknew or acted in reckless disregard of whether their words would be interpreted by the average viewer as defamatory statements of fact.\u201d Because de Havilland could not meet her burden of proof, the court ruled in favor of FX.<\/p>\n

In response to de Havilland\u2019s right of publicity claim, the court held that it failed for two reasons. First, Feud<\/em>\u2019s portrayal of real-life events was protected by the First Amendment and second, that Feud<\/em>was protected by California law\u2019s transformative defense (see Comedy III Productions, Inc. v. Gary Saderup, Inc.\u00a0<\/em><\/a>for more information). The court of appeals therefore, ruled in favor of FX Networks and directed the trial court to grant their motion to strike under the anti-SLAPP statute.<\/p>\n

Now, de Havilland, the 102-year-old star of Gone with the Wind<\/em>, is trying again by appealing to the Supreme Court. On one hand, de Havilland fights for \u201cthe principle of honesty<\/a>;\u201d on the other, Murphy and FX Networks fight for \u201cthe breathing room necessary to continue to tell important historical stories inspired by true events<\/a>.\u201d<\/p>\n

Jess Hui is a Sports and\u00a0Enterta<\/i>inment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).<\/i><\/p>\n

Image: Olivia de Havilland Publicity Photo 1952<\/a>, public domain<\/p>\n","protected":false},"excerpt":{"rendered":"

On Tuesday, FX Networks filed a brief\u00a0in opposition to Olivia de Havilland\u2019s petition for writ of certiorari, asking the Supreme Court not to hear de Havilland\u2019s case after her petition for review was rejected by the California Supreme Court on July 11. The initial lawsuit began on June 30, 2017 when de Havilland filed suit 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