Has Olivia de Havilland’s last starring role just been cut short?

The Hollywood great’s failed lawsuit has got fact-based TV and cinema off the hook

Hollywood great: Olivia de Havilland in 1938. Photograph: George Hurrell/Donaldson/Ochs/Getty

Hollywood great: Olivia de Havilland in 1938. Photograph: George Hurrell/Donaldson/Ochs/Getty

 

To the relief of film-makers and TV executives everywhere, a panel of three judges has rejected the defamation suit brought by the veteran actor Olivia de Havilland against the makers of the series Feud.

Still furiously alert at 101, the last great superstar of Hollywood’s golden age alleged that the series, which dealt with the dispute between Bette Davis and Joan Crawford, misrepresented her opinions and put rough language in her mouth. But Judge Anne Egerton wasn’t having it. “Whether a person portrayed in one of these expressive works is a world-renowned film star – ‘a living legend’ – or a person no one knows, she or he does not own history,” she wrote. “Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.”

Fans of Ryan Murphy’s broad series could be forgiven for wondering what had so riled Ms de Havilland. Played with curled hauteur by Catherine Zeta-Jones, this version of her is there mainly to act as a sort of Greek chorus. From a safe vantage in the 1970s, interviewed by a documentary crew, CZJ’s ODH talks us through the battles between Davis and Crawford while making What Ever Happened to Baby Jane? over a decade earlier. De Havilland’s participation in the core story is slight.

The most contentious aspect touches on the long disagreement between de Havilland and her equally legendary sister. “The creators of Feud used my identity without my consent and put false words in my mouth, including having me publicly calling my sister, Joan Fontaine, a ‘bitch,’ ” de Havilland explained recently to the Guardian. The makers of Feud note that de Havilland is on record as having referred to Fontaine, who died in 2013, at the age of 96, as a “dragon lady”. There has been much dispute about the reasons for the lengthy ill feeling between the sisters, but years of disputes seem to have come to a head when, in 1975, Fontaine was not invited to their mother’s funeral. Fontaine and de Havilland remain the only siblings to have won lead acting Oscars.

Olivia de Havilland: says the creators of ‘Feud’ put false words in her mouth, including calling her sister a ‘bitch’
Olivia de Havilland: says the creators of ‘Feud’ put false words in her mouth, including calling her sister a ‘bitch’
Sibling rivalry: Olivia de Havilland and Joan Fontaine around 1945. Photograph: Silver Screen/Getty
Sibling rivalry: Olivia de Havilland and Joan Fontaine around 1945. Photograph: Silver Screen/Getty

Sympathy for de Havilland was inevitable. No other stars of the top rank survive from the postwar generation. Oddly, the only other comparable living figure is Zeta-Jones’s father-in-law, but, also 101, Kirk Douglas did not become famous until the late 1940s. De Havilland, glamorous in Gone with the Wind and The Adventures of Robin Hood, is also celebrated for taking a case against Warner Bros that loosened the studio’s grip on contracted players. There still exists a code in California law, known informally as the “de Havilland Law”, that limits the application of employment contracts.

For all these reasons de Havilland, who now lives in Paris, was listened to with much respect. But serious worries remained about the precedents that would have been set had her case succeeded. Cinema and television are awash with dramas featuring aggressive portrayals of living people. Allison Janney just won an Oscar for playing a horrific version of Tonya Harding’s mother in I, Tonya. Ryan Murphy was also producer of the highly acclaimed The People v OJ Simpson: American Crime Story, a series that found fault in all those connected with that case. They say the royal family don’t sue, but, as Netflix’s The Crown moves towards the 1970s, many outside “the Firm” could, had de Havilland succeeded, have greatly stuffed the coffers of m’ learned friends.

In a move that surprised some legal analysts, a Californian judge rejected an earlier movement to dismiss by FX Networks, the station that broadcast Feud, and agreed the case could proceed to court. A group of American lawyers and academics quickly issued a dissenting statement. “Under the court’s logic, all unauthorised biographies would be unlawful,” they wrote. “If the law mandated that all living persons must give permission before they could be depicted in documentaries, docudramas, and works of fiction then they would have the right to refuse permission unless the story was told ‘their way’.”

De Havilland claimed the show used her identity without her consent. If that were to become a requirement then fact-based cinema and TV really would be flung into crisis

Netflix joined forces with FX and the Motion Picture Association of America to issue their own aggrieved howl. “Golden Globe and Academy Awards nominees brim with docudramas about or inspired by real events and real people who are still living,” the MPAA and Netflix argued.

The most worrying element was de Havilland’s argument that the show used her identity without her consent. If that were to become a requirement then fact-based cinema and television really would be flung into crisis. The mildness of Feud’s characterisation of de Havilland also caused eyebrows to be raised. Nobody finished the last episode of the show, in which Davis and Crawford tear endless strips off one another, by concluding that the real monster here was the apparently even-tempered de Havilland. Would only hagiography be allowed?

“I am fortunate to be able to be the standard bearer for other celebrities, who may not be in a position to speak out for themselves under similar circumstances,” de Havilland said. The judge no doubt admired her resilience, but the case was dismissed more quickly than most legal experts had predicted.

Was that Miss de Havilland’s last starring role?