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Olivia de Havilland files opposition to 'Feud' team's motion to strike her lawsuit

Olivia de Havilland in June 2016. (Thibault Camus / Associated Press)
Olivia de Havilland in June 2016. (Thibault Camus / Associated Press)

Olivia de Havilland has filed an opposition to FX and Ryan Murphy's motion to dismiss her "Feud" lawsuit.

The 101-year-old "Gone With the Wind" star, who sued FX Networks and Murphy's Pacific 2.1 Entertainment Group over her depiction in their Emmy-nominated docuseries "Feud: Bette and Joan," is trying to get their motion dismissed. 

The two-time Oscar winner, who was played by Catherine Zeta-Jones in the eight-episode docudrama, served as a narrator of the storied rivalry between legendary actresses and De Havilland contemporaries Bette Davis and Joan Crawford.

The veteran actress contends that she was not contacted or asked for consent to have her identity be included in the series. Her legal team obtained sworn declarations from industry experts to back up her opposition. One said that her unauthorized inclusion in "Feud" resulted in $1.38 million to $2.1 million worth of losses for the actress.

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FX and Pacific 2.1 "knowingly violated standards in the industry in producing 'Feud' without the consent of Miss de Havilland," De Havilland's lawyer said in a statement on Friday.

Her attorney, Suzelle M. Smith, argued in a state ment that the defendants didn't comply with the law governing the right of a celebrity to control her name and identity in the state of California, citing the precedents of Eastwood vs. National Enquirer and No Doubt vs. Activision Publishing, Inc., among others.

Smith added that Crawford's grandson, Casey LaLonde, is reported to have worked with FX and Murphy "to create an accurate portrait of her character.” 

"Why in the world would FX obtain the backing and apparently compensate LaLonde for use of his deceased grandmother’s identity, and consciously ignore the rights of the very much alive Olivia de Havilland to protect her reputation from distortion?" Smith said, adding that "they chose to ignore it and roll the dice."

Olivia de Havilland at her Paris home in 2003. (Jean-Marc Giboux / Getty Images)
Olivia de Havilland at her Paris home in 2003. (Jean-Marc Giboux / Getty Images)

In a declaration, Cort Casady, a TV writer-producer who reviewed "Feud" on De Havilland's behalf, said that the use of her name and identity in the series "cannot have been done by accident, but must have been an intentional act." Casady also said that it is not industry practice to use a celebrity's name and/or identity in a commercial production without permission. 

"It is certainly beneath industry standards — in fact, it is production malpractice — to attribute false statements and inaccurate endorsements to a person portrayed in a production without their permission," Casady said.

David Ladd, a former senior executive at MGM, said that "obtaining consent of a well-known person for use of their name, identity, character or image, is a serious matter on the standard pre-production checklist for a film. Failure to obtain proper consent would be out of the ordinary."

Another expert, Mark Roesler, chairman and CEO of Celebrity Valuations, testified that the failure to obtain consent and negotiate the value of using De Havilland's name in the series, as well as the false use of it, resulted in losses and unjust benefits to the defendants valued at between $1.38 million and $2.1 million.

A representative for FX's and Murphy's legal teams told The Times they had no additional comment.

FX and Murphy filed a motion to dismiss the lawsuit earlier this month that cited the U.S. and California constitutions' rights to free speech in connection with a public issue, arguing that it "is a prime example of an important expressive work."

They claimed that De Havilland's consent was not needed to include her in the show, nor did her inclusion violate her right of publicity, citing the state's statutes protecting petition and free-speech rights.

Earlier this week, De Havilland was granted an expedited trial, and a judge set the date for Nov. 29. A hearing on the motion by FX and Murphy to dismiss the lawsuit has been set for Sept. 29.

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