Last month, Olivia de Havilland – the last of the great actors of Hollywood’s Golden Age – died at the age of 104. That in itself is remarkable for someone who, in 1944, at the age of 28, was diagnosed with viral pneumonia, which has a high fever, coughing up blood and up to 90 pounds. She suffered in the South Pacific while submitting troops, all because she was effectively blacklisted by Warner Bros. And she waited.
Martin Gang also waited. From his law firm in the Taft Building in Hollywood and Vine, Gang waited to hear from the California Court of Appeals. Gang was the Havilland. De Havilland, as a minor, had a court-approved agreement with Warner Bros. for a term of seven years (including options). Warner Bros. had interpreted such an agreement – for the Havilland and all talent – as seven years of significance actual service. If the Havilland Warner Bros. refused. ‘roles, as was allowed to work for other studios (such as when they appeared memorable in Away with the wind for MGM), when sick, the studio simply extended the length of its contract.
The Havilland got her start in Errol Flynn swashbucklers, but when she was mediocre, she wanted to take on a greater variety of roles. Warner Bros., and Jack Warner in particular, insist that they appear in the assigned roles, or risk not working. De Havilland sought legal advice, and was introduced to Martin Gang. In retrospect, it was a match of the perfect plaintiff with the perfect lawyer.
Gang was diminished in stature but a giant in heart and mind. He was as affective as he was brilliant. If one of his longtime partners would think back: ‘He had a great love for people. He had an enthusiasm for people who transmitted, so he never met a person he did not like. That was true. He always found something he liked about her. He would say, ‘He’s a terrible lawyer, [but] is he not charming. ” Gang even had a warm relationship with Jack Warner, who at one time approached Gang to represent the studio in general. His reaction was classic Martin Gang: ‘Jack, I’d rather dress you than represent you. ”
And prosecutor he did. In the De Havilland Fall, Gang’s approach was to test the little – used statute in California that was originally introduced in the 1870s to ban ponies, as involuntary servitude. It was a legal maneuver that had not been attempted before. Gang filed an action before the court to declare that the government statute meant exactly what it said – that a contract for personal services could no longer be maintained beyond a period of seven years.
Gang expected Warner Bros. would argue that artists would be treated differently under the statue (and there was a separate provision) and that the parties could certainly agree to extend the term of the contract in circumstances where the studio did not receive the full benefit of the services of the actor. Gang also knew that the studio would try to portray the Havilland as depraved, uncooperative and ungrateful. The client and her lawyer were prepared. In the trial before the judge of the Superior Court, the Havilland was pure and firm. Later she thought about her cross-examination, reminding herself that the lawyer of the studio would say accusingly, in thunderous sounds, ‘Is it not true, Mrs. de Havilland, that on such and such a date you do not report at the set to play like that? and such a role in such and such a film? ‘And I, remembering Martin Gang’s instructions, said,’ I did not refuse. I refused. ‘”
The Superior Court sat with the Havilland, and completed Gang’s theory in full, arguing:
“[R]oles might be attributed to an artist she could not consistently portray. It would even be possible if an artist had to oblige the sick will of a producer to represent roles that would completely destroy her popularity and value as an artist, and because of her refusal to demean herself, to extend suspensions and elections. term of the contract would prevent them from ever seeking other employment. . . It was to prevent such a state of pony or slangdom that the statue was introduced. ”
This was headline news in the sector, with the trade press declaring the Havilland a “free agent”. Warner Bros. appealed, and during the higher appeal, Jack Warner was adamant that the Havilland remain under contract. With her career in suspension, the actress ran military bases in Alaska and the South Pacific, and was so hesitant Jack Warner that he, without success, tried to restrict them from these trips.
In December 1944, the Court of Appeal reached its decision. The court upheld the lower court’s ruling in a substantial part, in what became known as the de Havilland decision. The Court of Appeal ruled: ‘The power to ensure the comfort, health, safety and general well-being of any or all employees is conferred on the Legislature. . . . The rights created in the public interest may not be transferred by private agreement. “So:
“An agreement to work for more than seven years would be an effective departure from the right to retire at the end of the seven years. . . The limitation of the duration of contracts for personal services and the rights of the employee in respect of them could not be abolished. ‘
Simply put, a contract for personal services could not be maintained for more than seven years, no matter how drafted and more matter how interpreted. Warner Bros. would appeal to the Supreme Court of California, which dismissed the appeal. It was now regulated law – seven years means seven years.
For Olivia de Havilland, this in turn means professional freedom. She returned to acting, and went on to win Academy Awards for her roles in Each his own en The heir, and was nominated for her image of a patient in a mental health hospital in The Snake Pit, very far from the type of roles that Warner Bros. had predicted for them. Yet for all the great films, nominations and distinctions that bear their name, no one can be more sustainable and effective than the legal cause that bears their name – Images from De Havilland v. Warner Bros..
For Martin Gang, he continued to advance and protect the interests of actors, directors, writers, producers and singers – including Bob Hope, George Burns, Elizabeth Taylor, Richard Burton, Frank Sinatra and Marilyn Monroe. He was a visionary when it came to the law and also the business of the law. He founded the first consulting firm for entertainment stores to represent talent on a percentage basis, which became a model for the law firm Talentside that still thrives to this day. And at a time when it became very strange for women to be lawyers, Gang hired Hermione Brown after World War II, and was happy when she became a name partner, one of the first women to do so. in the city did, if not the country.
For the sector, the impact of the De Havilland case can not be overwritten too much. In City of Nets, Otto Friedrich distilled it like this: “[Olivia de Havilland] was free from her contract. She had won. Jack Warner had lost, and by implication had lost the entire studio system. It was just a crack in the system, but the cracks spread. As the cracks continued to spread in the following decades, the power dynamics between talent and the studios began to escalate, and even shifted in favor of talent, which could reach eight figure salaries, gross of first dollar, and just as important, the freedom to move away from big pay days in striving for artistically satisfying projects. Those power dynamics continue to ebb and flow, but never again will content creators be treated as the talk of content owners. For Olivia de Havilland and Martin Gang, the decision to wait for their respective outposts in the fall of 1944 would do more than resolve a dispute, it would change the entertainment business forever.
Bruce Ramer is the founder of Gang, Tire, Ramer, Brown & Passman. Kevin Marks is another partner at the company.
