Substantially Similar--A Blog on IP Issues, Writing and Film
It was gratifying to read obituaries of Christopher Plummer in the New York Times and Washington Post heralding both his theatrical work in classical and modern plays and his film performances. Most of the newspaper obits and those online, however, fulfilled Plummer's worst nightmare, leading with the statement that he is best remembered for his role in The Sound of Music, a film he hated.
I have just learned that my good friend Mary Claycomb passed away on November 26, 2020. I suspected something was wrong when we lost touch and, despite trying, I was unable to find her. I assumed that because she was a long-time resident of the Washington, D.C. area there would have been an obituary listing in the Washington Post if she had died. But I didn’t see one at the time and haven’t discovered one subsequently. So, I decided to write, not an obituary per se, but an appreciation of the existence of a remarkable woman.
I owe her a great deal. I met her in 1973 when I was working for the Eric Clearinghouse on Teacher Education, which was then headquartered on Dupont Circle in D.C. Mary had just come from New York City where she had worked in book publishing. She had been hired to initiate and expand publishing operations for the National Education Association. She was, however, not a stranger to the area, having been born in the District of Columbia as Mary Meade Harnett. She had graduated magna cum laude from Radcliffe College in Cambridge, Mass., which gave her membership in the Harvard Club. Over the years, our work in publishing would bring us separately to Manhattan, sometimes for the same conferences, and she would take me to lunch at the Harvard Club there.
She had called me at ERIC to meet with her at the NEA offices because she thought my work with the ERIC education information database would help her in hers. With the approval of my supervisors, I supplied bibliographies for monographs NEA developed. She also invited me to write some of the monographs, which I did on teaching fantasy in the classroom, teaching film in language arts classes, and teaching science fiction as literature, the latter, believe it or not, was a controversial topic at the time. This opportunity gave me nationally distributed publications at a very young age.
I remember there was a row when the proofs came out of for the science fiction book. I had a long quote for which the H.G. Wells’ estate had given me permission to use. The ending of Wells’ 1936 film Things to Come is set in the far future. After a revolution has been foiled, Passworthy asks the protagonist Oswald Cabal if there is ever to be an age of happiness, is there ever to be any rest. Cabal answers. “Rest enough for the individual man, too much and too soon, and we call it death. But for man, no rest and no ending.” And the passage ended, “Is it this or that—all the Universe or nothingness. Which shall it be, Passworthy, which shall it be?” The hierarchy of the publishing division decided that the quote had to be changed to, “Rest enough for the individual person, too much and too soon, and we call it death. But for man or woman, no rest and no ending.” As a young writer, I felt that the original wording was part of the period in which the work was written. I remember writing them, too glibly, that changing the Lord’s Prayer to “Our Father and Mother who art in heaven” would bring in a host of theological issues. I also argued that the changes not only destroyed the rhythm but would go badly with the Wells estate, which had insisted on approving the quote. The hierarchy responded that there was indeed a justifiable concern about altering the wording of a copyrighted quote, but then the only solution was to cut it out. The Wells’ quote was, however, meant to be the final passage of the book, and without it I had no ending. If I had to do it all today, being somewhat wiser, I probably would have handled it differently. But Mary backed me up, and the quote stayed in.
She was 17 years older. She seemed to like my company. Even when I left ERIC, we’d have lunch periodically and would talk on the phone. When her mother passed away in 1980, she told me that the lunches and calls with me helped her get through it. I knew she had married and divorced, which was the reason for her last name, but she never spoke of it.
She was very stylish in her dress and manner. She wore 1940 style wide-brimmed hats. Her ancestry on her mother’s side reached back to the founding of the country through the Page and Nelson families. I remember when she learned I was getting married and asked me to lunch. To celebrate, she proposed that she order a bottle of wine with the meal. She asked what I liked. I first tasted alcoholic beverages in college, but not wine. But my parents had let my teenage-self try sips of the Italian wine Asti Spumante, so I suggested that. Mary knew it was a dessert wine but didn’t correct me. The overabundance of sugar actually aggravated my nervousness on the ride up to New York for the wedding.
When I married, she invited us to dinners at her condominium and New Year’s Eve parties, not only Deborah and me but her parents when they came down for the holidays and my mother, who lived in the neighborhood. Mary was a fabulous hostess.
She served as a mentor for my own writing. I remember complaining about not getting published. Her reaction was, “You’re going to have to decide whether you want to be a good writer or just get published. They’re not the same thing.”
Political situations led to her leaving NEA. She decided to start her own publishing company. Deborah and I were among her investors. Mary issued a number of provocative titles: Missing Links by Vincent J. Begley, which was promoted as the first adoption search book written by a male; a collection of short fiction titled The Medical School: Stories of the Medically Macabre by G.P. Hosmer; and The Art of Railroading by Charles Paine, which was a reissue of an 1884 manual that Mary felt could prompt the application of railroad management advice in the corporate world, just The Art of War by Sun Tzu had brought lessons in military strategy to business situations. But starting a publishing imprint is a difficult task, and Mary became a consultant, even working on projects with the NEA.
Mary was a longtime board member of CINE, a nonprofit dedicated to documentary films that was especially noted for its annual awards. She cajoled me into using my lunch hour as a reviewer of award entries where she and I would sit in borrowed office space watching film after film on the VCR/DVD player. I learned a lot about documentary filmmaking, of course. This led to my being asked to join CINE’s board of directors, which I did for a number of years, unofficially offering legal advice on request. Mary contributed to the wider recognition of the importance of documentary films.
Her most fulfilling work was probably her 10 years as president of the Page Nelson Society, where she planned society events, wrote the society’s newsletter, managed grants to exemplary students in U.S. history at George Mason University, and helped support preservation activities of history sites in Virginia. She sent me the newsletter regularly, and I was amazed at the depth of her content. I went to a few society gatherings, and attendees were sure to tell me that Mary had brought new energy not only to the society but to the mission of preserving historical Virginian sites.
When I went to work in Crystal City, Va. to write for BNA, which became Bloomberg Law, which became Bloomberg Industry Group, the daily deadlines were such that we could only manage lunch once in the ten years I was there. The last time I heard from her was three years ago when she gently and compassionately responded to an email I sent informing her of the death of my mother. I received no response to subsequent emails and left messages on her machine that were never returned. When I mentioned this to some people, they were not surprised, suggesting that someone who took such great care in how she looked had possibly been reluctant to go out when it was more difficult to demonstrate the same care. In 2019, I sent a Christmas card and copies of recent published articles to her condominium in Chevy Chase that were returned with the note that the recipient no longer lived there. I have learned that she went to a nursing home where she ultimately died.
Her friend Mary Frost, who was a CINE board member with Mary, wrote today in an email that Mary had a keen understanding of human behavior and could spot a charlatan from a mile off. She was kind and caring, brilliant, and one of the most articulate and well-read people I have ever met. I have missed her and will do so even more now that I know she is gone.
Copyright 2021 by John T. Aquino
Olivia de Havilland died July 25, 2020 at the age of 104. She was likely the last of the great Hollywood stars of the golden era, having made her first U.S. film in 1935. She also garnered attention with two lawsuits, one filed in her 30s and one toward the end of her life.
She was one of the most active stars in Hollywood from the mid-1930s to the mid-1940s. She made 26 films from 1935 to 1943, not including cameos in which she played herself, and she usually was the lead actress. One of those films was Gone with the Wind, in which she portrayed the noble, long-suffering Melanie. It was, depending on your method of measurement, probably the most successful film of all time. Although it has very recently been criticized as racially insensitive, her portrayal endures. As she herself said, while actresses relish portraying a villainess, it is difficult to make a genuinely good person dramatically interesting. And she did.
She made a string of movies with Errol Flynn--swashbucklers, including Captain Blood and The Adventures of Robin Hood; westerns, such as Dodge City, Virginia City, and They Died with Their Boots On; and even comedies, such as Four’s a Crowd.
De Havilland came from a British family that could trace its ancestors to a supporter of William the Conqueror. Her more recent relations were theatrical ones—her mother, Lillian Fontaine, had appeared on stage and screen, and her sister, Joan Fontaine, had begun to shine in the early 1940s in such films as Rebecca and Suspicion. Her father practiced law.
By all accounts, de Havilland was a team player. But she also wanted to stretch her skills as an actress and not just jump from film to film as Errol Flynn’s girl or the “sweet one in the picture.” But the studio to which she was under contract, Warner Bros., felt they had a good thing going and a known quantity with de Havilland playing the types of roles she’d been playing. When the studio refused to give her meatier roles, she declined the parts they gave her and, as a result, did not appear in films for three years. Rather than relent, the studio told her that they were extending her contract by 25 months—the time she had not worked.
This was a familiar studio tactic. It demonstrates that the Hollywood moguls felt that actors were property rather than people. Studios sometimes deliberately offered actors roles that were unworthy or demeaning just so that the actors would refuse them, and the studios could extend their contracts. The actors were then faced with either playing roles that could hurt their careers or being locked in with one studio that could cast them in poor films. Some played the bad roles and lost their popularity. Others stayed with the studios—and sometimes ended up playing inferior roles anyway.
De Havilland, for all of her sweet exterior, would have none of it. Her father had, after all, been an attorney. She did what not a single one of the other Warner Bros. contract players—not even the “tough guy” actors like Jimmy Cagney, Edward G. Robinson, or Humphrey Bogart—dared to do: she sued Warner Bros. in California court in 1943 and won—de Havilland v. Warner Bros. Pictures, 67 Cal. App. 2d 225 (1945). The court held that entertainment contracts could last no longer than seven years. This was codified in California labor law as California Labor Code § 2855. It is popularly known as “The De Havilland Law.”
Having beaten and, indeed, broken the Hollywood contract system, de Havilland returned triumphantly to films. In 1946, she appeared in four movies—only one of which, Devotion, was released by Warner Bros., and it had been on the shelf for the three years that de Havilland was suing the studio. One, appropriately named To Each His Own and released by Paramount Pictures, won her the best actress Oscar. She then—in contrast to her previous “23 films in nine years” pace--slowed down. She made no films in 1947, and only one each in 1948 and 1949. But they were good selections. She won a 1948 Oscar nomination for her performance in The Snake Pit, released by 20th Century Fox, and a second Oscar for her performance in The Heiress, released by Paramount.
But for all of this great success after her court victory, de Havilland’s film career continued its slow pace. She left Hollywood for Broadway in 1950 and after meager success returned to films for the 20th Century Fox costumer My Cousin Rachel in 1952, where her co-star, a young actor named Richard Burton, attracted the attention and won a best supporting actor nomination. Over the next 36 years, from 1952 to 1988, de Havilland appeared in 23 films—less than she’d done in her first nine years with Warner Bros.--and only four of which gave her starring or lead actress roles. Most of them were filmed in Europe. In one of them, a weak comedy titled The Ambassador's Daughter (1956), she played at the age of 40 a role she would have been more suitable for when she was 20--the daughter of a U.S. ambassador in Paris who breaks rules by dating an American soldier. Roles for her were apparently hard to come by.
It looks like filmmakers were bearing grudges after all. Also, the studio heads were changing. Moguls were leaving the studios or had less power and corporate business executives were taking over. Someone with a tendency to go to court—and who had ruined a profitable studio system—was not welcome.
Her friend and co-star (in Raffles) David Niven summed it up. “Olivia struck a great blow for freedom, and everyone in the industry should bless her, but she hardly ever worked in Hollywood again.”
At the age of 102, de Havilland sued filmmakers for their depiction of her in the 2015 tv movie Feud. The film was about the feud between Bette Davis and Joan Crawford during the making of Whatever Happened to Baby Jane. De Havilland claimed that the teleplay's portrayal of her was false.
The lower court had declined to dismiss the case, showing great deference to de Havilland, indicated that she could conceivably succeed on the merits of her complaint that FX Networks had violated her statutory right of publicity, misappropriated her image, and that the miniseries constituted false light invasion of privacy. (She didn't sue for libel, which is a false statement fixed in a tangible medium that is defamatory, is clearly about the plaintiff and that causes damages.) De Havilland based her claims on an interview at the 1978 Academy Awards ceremony that the filmmakers admit didn't factually happened but that they used to frame their story and two comments in which she was shown to call her sister Joan Fontaine a "bitch." She also stressed that the filmmakers hadn't asked her person or paid for the use of her name or likeness.
A difficulty for de Havilland was that the movie wasn't about her. She was a minor character in the film. Another was that, while she hadn't called her sister a "bitch," she had called her a "Dragon Lady." A third was she was a public figure and many of the events shown in the miniseries had actually happened.
The appeals court made its position clear early on in its opinion: "Whether a person portrayed in these expressive works is a renowned film star--"a living legend"--or someone no one knows, he or she does not own history. Nor does she have the legal right to control, dictate, approve, disapprove or veto the creator's portrayal of actual people."
It probably wasn't how she wanted to spend her last moments in the public spotlight--as a loser. But she was anything but. She created moments of life on celluloid that are still breathtaking and that will last forever. And she always fought for what she believed in, win or lose. God bless her.
Copyright 2020 by John T. Aquino
My wife's childhood friend, Constance Smith, is also a legal client of mine. I represented her in the contract negotiation of her book, Damsels in Design: Women Pioneers in the Automotive Industry 1939-1959 (Schiffer, 2018) ( https://www.amazon.com/Damsels-Design-Pioneers-Automotive-1939-1959/dp/0764354353/ref=sr_1_3?dchild=1&keywords=Constance+Smith&qid=1586562602&sr=8-3 ). She herself has been a pioneer in writing about women who developed landmark products in automotive design. It has sold well and won a number of awards, and she is working on a second book on the topic.
I stumbled on a film called Female (1933) that runs parallel and a little sideways to Connie’s book. Little known today, it was directed by Michael Curtiz, who won an Academy Award for directing Humphrey Bogart and Ingrid Bergman in Casablanca nine years later, and William Wellman, two years after he made a star of James Cagney in the gangster film Public Enemy. Female is a fictitious film that tells the story of Alison Drake, the touch-minded executive of an automobile factory, who succeeds in the man's world of business until she meets an independent design engineer. It starred Ruth Chatterton, a star of the 1930s who actually lived the part, in a way, because she was also one of the few women aviators in the U.S. at the time.
Alison is portrayed as hard, powerful, bold, and innovative. It is no accident that the filmmakers shot the exterior of her home on location at Ennis House, which was designed by the architectural genius Frank Lloyd Wright. But while there are shots of some auto design sketches, it’s also telling that the cars that roll off the assembly line of her factory appear to be 1933 Fords. The emphasis is not on designs of the automobiles but on a woman doing a man’s job and acting like a man. She takes advantage of her male employees the way male movie executive would employ the “casting couch” for would-be starlets. (When she is cool to on of these men at the office after a night together and he objects, she transfers him to Montreal. He looks like he is about to say, "I feel so cheap," but doesn't.) Ultimately, Female caves to conventional 1930s thinking: while Alison has succeeded in a man’s business world, she finally opts for the traditional woman’s role of wife, homemaker, and mother. She marries the independent design engineer, turns the business over to him, and announces that she will have nine children. There’s a brief YouTube clip about the film with a running typed commentary that ends with an appropriate reaction ( https://www.youtube.com/watch?v=0_xHLYfZ0qw ).
The movie was still ahead of its time in portraying a woman as an automotive executive. There were women in the industry who designed innovative automotive products, but they did it without fanfare and often without credit. While Warner Bros. studio thought that a women running a car company was possible in 1933, the reality was different. It wasn't until Dec. 10, 2013, 80 years after Female was made, that General Motors announced that it had appointed its--and the entire automobile industry's--first female chief executive officer, Mary Barra. In June 2018, Dhivya Suryadevara became GM's--and the industry's--first female chief financial officer.
Eighty years late but finally.
Copyright 2018 by John T. Aquino