“I was deeply offended.”
— Olivia de Havilland
“The ability of public figures to censor and alter stories and reporting about them is a chilling prospect.”
— Jennifer E. Rothman
Professor, Loyola Law School
Olivia de Havilland is no stranger to the Silver Screen, nor to the courtroom. Between 1935 and 1964, she was one of the leading ladies of Hollywood, starring in such films as ‘The Adventures of Robin Hood,” “Gone With the Wind,” “Wings of the Navy” and “They Died With Their Boots On.” She continued to appear in such films as “Airport ‘77” and on television in productions like “North and South, Book II” until her retirement in 1988. She was nominated for five Academy Awards, and took home the Oscar statuette twice.
Prior to winning those Academy Awards, de Havilland proved her merit in the legal setting too. She had, to that point, been under contract to Warner Brothers. Her personal services contract was for the maximum period then permitted under California law — seven years. Upon reaching her seventh year in 1943, Dame de Havilland (she was made a Dame Commander of the Order of the British Empire by Queen Elizabeth II last year, upon reaching her 100th birthday), assumed that she would be free to sign elsewhere.
Warner Brothers had other ideas. Their lawyers had successfully argued for years that the time period of a personal services contract only counted the actual days worked by the person who was the subject of the contract. Since actors don’t work every day during the year, these contracts could be stretched far longer than seven years, sometimes even decades. In this way, the major studios could lock up talent indefinitely.
She sued, with the support of the Screen Actors Guild, and in December of 1944, the California 2nd District Court of Appeals ruled in her favor, concluding that seven years meant seven calendar years and could not be computed on actual days worked. Ms. de Havilland immediately signed with Paramount, and her first picture under that contract, “To Each His Own,” earned her an Academy Award for best actress. Her second would come three years later, again for Paramount.
Now 101 years of age and living in Paris while holding French, British and American citizenship, Ms. de Havilland finds herself in court again, and again the underdog. This time she is suing FX and Ryan Murphy Productions over the portrayal of her in the TV docudrama “Feud: Bette and Joan,” which ostensibly told the story of a battle between Bette Davis and Joan Crawford.
Ms. de Havilland was outraged by the portrayal of her in that program and is now claiming three causes of action: Unfair competition, violation of the right to publicity, and the tort of false light. The Motion Picture Association of America, Netflix, and a laundry list of law professors (including one from Case Western Reserve University) have filed briefs siding with FX and against Ms. de Havilland.
Why is most of Hollywood against her? They are fearful that if she succeeds on her right of privacy claim, they will be completely unable to portray real people (at least living ones) in films like “I, Tonya,” “The Post,” “Hidden Figures,” “The Theory of Everything” or “Captain Phillips.”
Up to now, courts have ruled that such portrayals of real people are protected by the First Amendment, although they cannot be used in merchandising, and the studios cannot use the person’s likeness to suggest endorsement of the production. Further, existing defamation and false light claims would subject a studio to liability if they knowingly portray someone in a false light, and doing so harms that person. Ms. de Havilland could potentially succeed on such a claim without making new law.
But her lawsuit seeks to expand the claim of a right to publicity. It asks the court to find that the First Amendment does not protect portrayals of real people in historical or biographical films and television programs. Such an expansion would create a situation in which a person’s permission would have to be gained before they could be depicted in such a film or television program. As such, the major studios are all in opposition, as are constitutional scholars who believe the First Amendment should not be restricted in such a way.
Ms. de Havilland will be 102 years old on July 2, and so, the case has been placed on an expedited schedule. The California appeals court will hear arguments in the case on March 20, and its ruling will ultimately determine whether Ms. de Havilland’s suit can proceed and whether a person’s right to privacy trumps a movie maker’s First Amendment rights to tell their story.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.