Ah, so it is Tinsel Town true: Even icons of the silver screen can take a contrarian view of a juicy part — and then suffer rejection for it.

That’s what has happened to Olivia de Havillanda Hollywood grande dame. She has lost her running legal feud with FX Networks and Ryan Murphy, as a state appellate court  in California has dismissed her claim that their television show violated her publicity rights with what she asserted was an inaccurate depiction of her.

She is a living legend. Her unforgettable portrayal of Melanie Hamilton in Gone with the Wind earned her one of her many Oscar nominations. She had celebrated the day leading up to her 101st birthday filing the original complaint against the FX series Feud, which swept de Havilland into a story line involving Bette Davis, her friend and another Hollywood legend, as she tusseled with the renowned actress Joan Crawford.

De Havilland prides herself on refusing to engage in “typical Hollywood gossip about the relationships of other actors,” she has said. But she argued that the FX portrayal of her tarnished her reputation by creating the impression that “she was a hypocrite, selling gossip in order to promoter herself at the Academy Awards.”  The Washington Post reported that de Havilland took major exception to a Feud scene in which her character calls Joan Fontaine, an actress and her sister, an expletive, when “in reality she had called her a “dragon lady.” De Havilland also objected to a joke her character tells about Frank Sinatra’s heavy drinking.

In response to her complaint, FX filed a motion to strike, based on several counts, including that de Havilland could not prevail on her right of publicity claim. The defendants told the courts they had to rule against the double-Oscar winning star of 60 films — including The Adventures of Robin Hood (1938), To Each His Own (1946), The Snake Pit (1948), and The Heiress (1949) — as a matter of constitutional protection for the First Amendment rights of the show and its creators, as well of public interest.

Although  Superior Court Judge Holly E. Kendig court denied the motion, the California Court of Appeals 2nd Appellate District unanimously ended the feud once and for all, granting the motion to strike.

As the judges ruling in this case —Anne Egerton, Lee Smalley Edmon, and Halim Dhanidina  — wrote:

Feud is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life —  including the stories of real individuals, ordinary or extraordinary — and transform them into art, be it articles, book, movies, or plays.

The appellate judges heavily relied on Guglielmi v. Spelling-Goldberg Productions (Gugliemi) to determine that FX had a first Amendment Protection against a right of publicity claim. 25 Cal.3d 860 (1979).

In that case, Rudolph Valentino’s nephew sued a television program for a “fictionalized version” of the actor. The court in Guglielmi held that readers or viewers — and not the courts  — were the ultimate arbiters as to whether the broadcast portrayal was accurate or a “mere fantasy,” and that entertainment is entitled to the same constitutional protection as the exposition of ideas.

Courts in California and at the federal level since have made Guglielmi a legal standard, citing it multiple times, including, the appellate judges noted, for: Comedy III, supra, 25 Cal.4th at pp. 396-398, 401-402,
406; Winter v. DC Comics (2003) 30 Cal.4th 881, 887-888, 891 (Winter); Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 145 (Tamkin); Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280; Polydoros v. Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th 318, 324-325 (Polydoros) [and]
Sarver v. Chartier (9th Cir. 2016) , supra, 813 F.3d at p. 905, fn. 9.

The California appellate judges also noted that First Amendment  claims had trumped assertions about violations of publicity rights, for example, with civil rights pioneer Rosa Parks’ depiction in books, movies and a plaque. The case cited here was The Institute v. Target Corp. (11th Cir. 2016) 812 F.3d 824, 826.

That case also extended to the judiciary itself, such that the creatives who depicted Los Angeles Superior Court Judge Lance Ito’s in The People v. O.J. Simpson: American Crime Story did not need to acquire his rights. 

This case was expedited due to de Havilland’s age, and it attracted considerable legal attention, with friends of the court or amicus roles taken up by the: Motion Picture Association of America, Netflix, A&E Television Networks, Discovery Communications,  Imperative Entertainment, Urban
One, Inc., Critical Content,  Reporters’ Committee for Freedom of the Press, and First Amendment Coalition, the Electronic Frontier Foundation,  Wikimedia Foundation, International Documentary Association, and the Screen Actors Guild-American Federation of Television and Radio.

De Havilland’s lawyer has spoken of appealing the case.


Photo credit: 1939 studio publicity still for Olivia de Havilland as Melanie Hamilton in Gone With the Wind