On Tuesday afternoon, oral arguments were heard in the case of Olivia de Havilland vs. FX over her portrayal in Ryan Murphy's docudrama, "Feud." The issue before the three judges from the 2nd District Court of Appeal was FX's desire to dismiss the case brought by de Havilland, who essentially argued that the way she was presented in the miniseries was as "vulgar" (using the word "bitch" twice, once in reference to her sister, Joan Fontaine) and as a gossip — altogether contrary to the way the film icon has lived her life. (One of the few things both sides agreed on is that de Havilland is, indeed, an "icon.") Whether or not the case can move forward to a jury trial should be announced in the next few weeks.
To hear the FX attorney tell it, "Feud" is akin to Citizen Kane and Dostoevsky and Dickens tell us more about their era than the historians of their day. (Seriously, that was all woven into their arguments.) They also said that to let the case move forward would endanger the First Amendment, creative freedom and any docudrama anyone ever hoped to make. They insist that de Havilland has to prove "actual malice" to move the case forward. And as a producer of Peter Bogdanovich's "The Cat's Meow" told me when I objected to the way that film presented William R. Hearst and Marion Davies, "you can't libel the dead." Maybe so, but Olivia de Havilland is very much alive, and she is objecting.
At 101 she has been living in Paris for decades with occasional visits to California, where her daughter Gisele, who looks remarkably like her, lives. (Gisele was in court today.) Olivia is known to be a patently private person, but 75 years ago — yes 75 years — she made lasting legal history with what is still known as The de Havilland decision. She sued Warner Bros and successfully ended Hollywood studios' practice of extending seven year contracts by adding on any time they had suspended the talent for any reason. The court ruled that seven years was seven calendar years, thereby liberating actors by ending their servitude on a date certain. At the time, Olivia had objected to type casting and made it clear it was not just about her, but the lesser known talent who had to suffer in silence. Yet she also pointed out, "As soon as my victory was legally confirmed, and I was free to choose the films that I made, Paramount presented me with the script of 'To Each His Own' — this was exactly the kind of challenge for which I fought that case." That performance also won her the first of her two Academy Awards.
And with this current case, she is again making clear that the issues at stake are not just about her. As she wrote in a letter to the Los Angeles Times:
I have spent a good portion of my life defending the film industry. However, studios, which choose to chronicle the lives of real people, have a legal and moral responsibility to do so with integrity. They have a duty not to steal the value of an actor's identity for profit. "Feud" failed in its professional duty to portray me fairly and truthfully. I am proud to be the standard bearer for other celebrities, who may not be in a position to speak out for themselves under similar circumstances.
As I listened to the arguments today, I found myself realizing that many of the very real complaints that de Havilland (and anyone who cares about accurate film history) has, probably cannot be determined in a court case.
As someone who has made her living writing about film history for the last twenty years, I know I wasn't able to enjoy "Feud" because I knew too much about Bette Davis, Joan Crawford, Hedda Hopper and yes, Olivia de Havilland. The characters were too cartoonish for me to appreciate and I shrugged it off. But when the FX attorney cited a dubious biography of Davis and Crawford as their credible source for the dialogue they put in de Havilland's mouth, it was too much for me. Fictionalizing people who once lived for publicity and profit offends anyone who seeks to be a serious biographer and is left in the dust by sensationalism, but for Olivia de Havilland it has to be much more than that.
She had a complicated, nuanced and at times challenging relationship with her sister, but for all her 101 years she has kept silent about it. A product of an era when "a lady" kept her opinions to herself, and tutored by studios to act like a star both publicly and personally, de Havilland has lived by that code. And now a television program has defined her as "vulgar" and "a gossip" to generations who will assume that is accurate. Maybe that reference to "Citizen Kane" makes a valid point after all — how many viewers of that film assume that the beloved and vivacious comedienne Marion Davies was actually the whiny drunk character, Susan Alexander?