FX Can't Toss Olivia De Havilland's ‘Feud’ Portrayal Suit

By Melissa Daniels 

Law360, Los Angeles (September 29, 2017, 5:51 PM EDT)

Olivia de Havilland beat back an anti-SLAPP motion from FX Networks in her lawsuit over its “Feud: Bette and Joan” series on Friday when a California judge found the 101-year old actress provided sufficient evidence to support a claim that certain scenes portrayed her in a false light.

Los Angeles Superior Court Judge Holly Kendig denied the anti-SLAPP, or Strategic Lawsuit Against Public Participation, motion that sought to toss out de Havilland’s suit accusing FX Networks LLC of damaging her reputation with the hit series “Feud.” FX argued the eight-part series is protected under the First Amendment.

Though Judge Kendig agreed with FX that de Havilland’s false light and right to publicity claims arise from protected activity, she ultimately concluded de Havilland met her burden to show a likelihood of succeeding on the merits, citing a minimal threshold at the anti-SLAPP stage. She rejected FX’s arguments that the portrayal wasn’t defamatory, saying that a viewer “may think plaintiff to be a gossip who uses vulgar terms.”

The judge also examined whether the show’s creator acted with actual malice, or with knowledge of falsity or reckless disregard for the truth. Though the show’s creators declared that they undertook extensive historical research and aimed to create a nuanced, accurate depiction, de Havilland was never contacted during the show’s production, Judge Kendig said.

“Miss de Havilland was alive,” Judge Kendig said. “She could’ve answered questions.”

Robert Rotstein of Mitchell Silberberg & Knupp LLP, who is representing FX, told Judge Kendig they planned to appeal. Given de Havilland’s age, he said he would work with her attorneys to ensure speedy proceedings.

“Feud” was created by producer Ryan Murphy to tell the story of the historic Hollywood rivalry between Bette Davis and Joan Crawford when they were making the 1962 film “What Ever Happened to Baby Jane?”

De Havilland, who first sued in June, says the show wrongfully showed her as the kind of person who engaged in “gossipmongering” about other actors — including calling her sister, Joan Fontaine, a “bitch.”

Other scenes at issue include a 1978 red carpet interview that allegedly never occurred and a dig at Frank Sinatra’s alcoholism that de Havilland, who was played by Catherine Zeta-Jones, says never happened. 

FX’s anti-SLAPP motion said de Havilland’s “meritless” suit should be rejected because of First Amendment protections for expressive works. It argued that de Havilland couldn’t prove her false light claim because she couldn’t prove the required elements, which are the same as those for defamation: proof of falsity, defamatory meaning and actual malice.

In looking to knock out the right to publicity claims, FX argued that de Havilland couldn’t prevail partly because the dramatizations in "Feud" are transformative.

But on Friday, Judge Kendig shot down the transformative argument, pointing to the creators’ own declarations that they strove to make a nuanced, historically accurate depiction of the celebrities in the show.

“Because of that, there’s nothing transformative about this docudrama,” Judge Kendig said.

After the judge spent about an hour walking through the reasoning for her tentative ruling, FX’s counsel Rotstein pushed back against the actual malice analysis, arguing that there was no evidence that the show’s creators acted recklessly. There’s a difference, he said, between false and dramatized.

“They did research, they tried to make it right,” he said. “When writers try to make it right, that can’t be actual malice.”

But de Havilland’s attorney Suzelle Smith of Howarth & Smith argued that all the research the show’s creators claimed to do put together a “structured, grafted” series that mixed historical facts and falsehoods. 

“We’re not defeated just because they say, ‘We didn’t mean to do it,’” Smith said.

Don Howarth of Howarth & Smith, who also represents de Havilland, told Law360 after the hearing that FX’s actions took his client’s “name and image for their own benefit” without any compensation. 

“They didn’t consult with her, they didn’t verify, they didn’t do anything,” he said.

An attorney for FX declined to comment.

De Havilland is represented by Suzelle Smith, Don Howarth and Zoe E. Tremayne of Howarth & Smith.

FX and the production company are represented by Robert H. Rotstein, Emily F. Evitt and Aaron M. Wais of Mitchell Silberberg & Knupp LLP.

The suit is de Havilland v. FX Networks LLC et al., case number BC667011, in the Superior Court of the State of California, County of Los Angeles.