A state appeals court panel tossed out a lawsuit by actress Olivia de Havilland on Monday against the FX Network over her depiction in the docudrama series "Feud: Bette and Joan," with the court ruling the production is protected by the First Amendment.
The ruling by the three-justice panel of the state 2nd District Court of Appeal reverses a Los Angeles Superior Court judge's earlier decision allowing the lawsuit to proceed to trial.
In its 38-page ruling, the panel rejected the now-101-year-old actress' contention that the series violated her privacy rights and showed her in a negative light in part by portraying her using vulgar language. She argued that the show violated her "right of publicity" -- essentially using her name and likeness without approval to endorse a product.
"Books, films, plays and television shows often portray real people," according to the appellate panel's ruling. "Some are famous and some are just ordinary folks. 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. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator's portrayal of actual people."
The court overruled Los Angeles Superior Court Judge Holly Kendig's ruling that the show was not entitled to First Amendment protection.
"... This reasoning would render actionable all books, films, plays and television programs that accurately portray real people," according to the court. "Indeed, the more realistic the portrayal, the more actionable the expressive work would be."
The panel concluded that the lower court's ruling "leaves authors, filmmakers, playwrights and television producers in a Catch-22."
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"If they portray a real person in an expressive work accurately and realistically without paying that person, they face a right-of-publicity lawsuit," according to the ruling. "If they portray a person in an expressive work in a fanciful, imaginative -- even fictitious and therefore 'false'-- way, they face a false light lawsuit if the person portrayed does not like the portrayal."
De Havilland's lawsuit argued in part that the series showed her calling her sister, Joan Fontaine'' a "bitch," when in reality she called her a "dragon lady." Her attorneys argued that the scene falsely portrayed her as a vulgar woman.
While arguing the case before the appeals panel last week, FX attorney Kelly Klaus countered that the show portrayed de Havilland in a positive light, painting her as a fiercely loyal friend.
"The show simply does not portray Ms. De Havilland as a vulgarian," Klaus said.
De Havilland filed suit June 30. Her 49 feature film roles included portraying Melanie Hamilton in "Gone with the Wind."
Catherine Zeta-Jones portrayed de Havilland in the series, which starred Jessica Lange as Crawford and Susan Sarandon as Davis.
Crawford died in May 1977 and Davis in October 1989.
A two-time Academy Award winner for her lead roles in "To Each His Own" and "The Heiress,'' de Havilland "has built a professional reputation for integrity, honesty, generosity, self-sacrifice and dignity," according to her complaint. "A key reason for the public's deep respect for Olivia de Havilland is that in her 80-plus year career, she has steadfastly refused to engage in typical Hollywood gossip about the relationships of other actors."
