In June 2017, actress Olivia de Havilland sued Ryan Murphy's show Feud with claims of infringement of common law right of publicity, false light, and unjust enrichment. While she was known for her many legal battles during her time in Hollywood, she was not happy with Catherine Zeta Jones' portrayal of her as a gossipy hypocrite in the FX show. What began as a simple case might make its way to the Supreme Court, reports The Hollywood Reporter, and perhaps throw a wrench in the whole genre of docudramas.
It seemed like an open and shut case — at first. Judge Holly Kendig from the Los Angeles Superior Court rejected FX's attempt to stop the lawsuit, arguing that because de Havilland was living, the show could have come to her with any questions about her character, and by not doing so, they were disregarding the truth.
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"When the expressive work at issue is fiction, or a combination of fact and fiction, the 'actual malice' analysis takes on a further wrinkle," wrote the California appellate panel. "De Havilland argues that, because she did not grant an interview at the 1978 Academy Awards or make the 'bitch sister' or 'Sinatra drank the alcohol' remarks to Bette Davis, Feud’s creators acted with actual malice. But fiction is by definition untrue. It is imagined, made-up. Put more starkly, it is false. Publishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice."
The real question is: can something qualify as malicious if it's fictional? A California appeals court felt that Zeta-Jones' depiction of the character wasn't highly offensive, and that there was no way to prove it was done with malicious intent.
Now, it might be up to the Supreme Court, who, according to Suzelle Smith at Howarth & Smith, must "decide whether or not the First Amendment creates an absolute immunity from suit for publishers of docudramas or whether that format like all others is governed by the actual malice of New York Times v Sullivan." New York Times v Sullivan was a 1964 case that set the standard for the rule that a claim of defamation or libel can only be sustained if something was published recklessly and with malicious intent.
If SCOTUS decides to take up the case, the whole genre of docuseries could be in jeopardy — but the reputations of their subjects could be safe.
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