Legendary actress Olivia de Havilland
celebrates her 101st birthday today. Happy Birthday Miss de Havilland!
If you do not remember who Olivia de
Havilland is, you may choose to watch Feud , a television series,
which first season details the rivalry between Bette Davis and Joan Crawford,
which currently streams in the U.S. and will be shown in the Fall on BBC 2.
But this may not be a good idea, as Miss de
Havilland has taken offense of her portrayal in Feud, and filed
yesterday a California right of publicity and invasion of privacy (by publicly placing
a person in false light in the public eye) lawsuit in the Los Angeles County
Superior Court against the producers of Feud
(Hat Tip to Hollywood
Reporter).
Miss de Havilland, played by Catherine
Zeta-Jones, is featured in the opening sequence, as she is being interviewed
during the 1978 Academy Awards. During the interview, Catherine Zeta-Jones, as
Olivia de Havilland, is portrayed as saying: "There was never a rivalry like theirs [Davis and Crawford]. For nearly
a half a century, they hated each other, and we loved them for it." The
complaint alleges that Miss de Havilland portrayal in Feud “creates the public
impression that she was a hypocrite, selling gossip in order to promote herself
at the Academy Awards.”
The Complaint argues that Miss de Havilland
never gave such interviews “and never
made these statements about Miss Davis and Miss Crawford or their relationship.
The interview is fake and the statements attributed to OLIVIA DE HAVILLAND are
false. This interview itself and the statements attributed to OLIVIA DE
HAVILLAND are contrary to her public and private image and reputation and have
caused her economic, reputational, and emotional damages, including distress, anxiety,
and humiliation.”
Miss Zeta-Jones wears a dress similar to
the one won by Miss de Havilland that night, similar jewels, and hairdo. According
to the complaint, the Welsh actress has even been fitted a chin prosthetic to
make her look like Miss de Havilland. The complaint argues that “by meticulously including specific details
from real life, [Defendants] intended for the audience to believe that
the events depicted and the statements made by role players in "Feud"
were accurate, and were actually quotes from real people, including OLIVIA DE HAVILLAND.”
The complaint anticipates a First Amendment
defense, arguing that “[t]here is no public interest to be protected
by putting false statements into the mouth of a living person, using their name
and identity for a false and unauthorized purpose, damaging their reputation.
The First Amendment does not protect the false, damaging, unauthorized use of
the name and identity of a real, living celebrity merely because the
perpetrators cloak the work in the title of pure fiction, much less a
pseudo-documentary film.”
The California
statutory right of publicity claim
California provides a statutory right of
publicity, Cal.
Civ. Code § 3344(a), under which “[a]ny
person who knowingly uses another's
name, voice, signature, photograph, or likeness, in any manner, on or in
products, merchandise, or goods, or for purposes of advertising or selling, or
soliciting purchases of, products, merchandise, goods or services” must
first obtain the person’s consent . The complaint alleges that Miss de
Havilland did allow authorize Defendants to use her name, identity or likeness
in the Feud series and its
promotional materials, and further alleged that Defendants knew that she has
not given her consent for such use.
The California
common law right of publicity claim
California also recognizes a common law
invasion of privacy by appropriation of name or likeness, “that brings injury to the
feelings, that concerns one's own peace of mind, and that is mental and
subjective,” Dora
v. Frontline Video at 542. Therefore, it is not necessary at common law
for the use of likeness or name to have been commercial, and plaintiff can seek
mental stress damages. Indeed, the
complaint alleges that the interview featured in Feud “and
the statements attributed to OLIVIA DE HAVILLAND are contrary to her public and
private image and reputation and have caused her economic, reputational, and
emotional damages, including distress, anxiety, and humiliation.”
How will this legal feud end? Stay tuned…
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