And so it seems that Olivia de Havilland's feud with the Ryan Murphy produced FX television series Feud will come to an end. The 102 year old actress (!) had sued FX, Fox 21 TV, and produced Ryan Murphy for the use of her name and persona in the "Feud: Bette and Joan" miniseries, claiming in particular that Catherine Zeta Jone's portrayal painted her as a gossip who spoke casually and disparagingly of friends and acquaintances like Davis, Crawford, Frank Sinatra, and her sister Joan Fontaine. De Havilland took particular umbrage with the show de Havilland character's use of the word "bitch" twice to describe Joan Fontaine. De Havilland's attorney argued that no record exists of de Havilland ever using that word, much less in regard to her sister.
De Havilland originally filed suit in Los Angeles, which was allowed to proceed by the Los Angeles judge. A California appellate court reversed that decision back in March 2018 and the California Supreme Court previously declined to take up the case. Today the United States Supreme Court has decided not to take up the suit.
The MPAA is celebrating the news, stating that they are "pleased that the U.S. Supreme Court has declined to hear the De Havilland v. FX Networks case" and that this is "great news for filmmakers and other creators, whose First Amendment right to tell stories that depict real people and events was resoundingly reaffirmed by the Court of Appeals, and for audiences everywhere who enjoy a good biopic, documentary, docudrama, or work of historical fiction."
De Havilland's attorneys in turn state the "California Court of Appeal has turned the First Amendment upside down and without doubt more harm to individuals and public deception will result. One day someone else who is wronged for the sake of Hollywood profits will have the courage to stand on the shoulders of Miss de Havilland and fight for the right to defend a good name and legacy against intentional, unconsented exploitation and falsehoods." (emphasis mine)
I'm going to have to side with Miss de Havilland here. The First Amendment does not extend to protecting falsehood. Historical dramas have enough issues with addressing inaccuracies with long dead figures. At least in those instances, there are more gaps to fill in people's character and mannerisms. The danger of portraying a living figure is that they can point out the specific inaccuracies and blatant misrepresentations that are presented.
I really think the creators of the series may have forgotten Miss de Havilland is still alive. She has lived in relative quiet seclusion in Paris since her retirement. They never reached out to her for permission to use her likeness nor did they reach out for any background information that would inform or corroborate their take. And while the feud between Olivia de Havilland and Joan Fontaine may be legendary in its own right, that does not make the portrayal in Feud accurate.
The California Court of Appeals had determined that a person does not "own history" regardless of stature, nor "does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator's portrayal of actual people."
Maybe not, but we at least used to make certain that the portrayal had truth in it.