Olivia and the “De Havilland Decision”


deHavilland_Photo1This month’s “Dame in the Game” focuses on one of the last surviving stars of the studio era: Olivia de Havilland. She is best known for playing a character Scarlett O’Hara (Vivien Leigh) refers to as “mealy-mouthed,” but her actions in Hollywood that forever changed California contract law were anything but.

De Havilland signed a standard seven-year studio contract with Warner Bros. before she was even eighteen to play Hermia in Max Reinhardt’s A Midsummer Night’s Dream after originating the role in his famous production at the Hollywood Bowl. She quickly rose to super-stardom as half of one of classic Hollywood’s most indelible screen couples opposite Errol Flynn, with whom she would make eight films. The onscreen partnership began with Captain Blood (1935) and rocketed to popularity with the iconic The Adventures of Robin Hood (1938).



Consistently, de Havilland was called upon to play the demure damsel-in-distress immortalized by her turn as Maid Marian. She quickly tired of such shallow roles, yearning to demonstrate her acting prowess first displayed in the Shakespearean production that earned her a studio contract.

As de Havilland explains herself in a February interview with Entertainment Weekly, “What bothered me was playing one-dimensional parts in films which were really about ‘Boy Meets Girl,’ ‘Will Boy Get Girl?’ (He always did). Those roles were intended simply to fill the routine function of ‘The Girl.’”

She got her chance to dig into a meatier role when Warner Bros. loaned her out to David O. Selznick in 1939 to play her most iconic role – Melanie Hamilton-Wilkes in Gone with the Wind. Taking her good-girl image and adding a layer of depth to it, the role of Melanie earned de Havilland her first Oscar nomination and gave her the opportunity to play a character she finally deemed worthwhile.


But the experience of playing Melanie also made de Havilland feel what she was missing more keenly – the fluffy heroines Warner Bros. assigned her now seemed ridiculous in light of Melanie’s depth and the acting chops she’d showcased in the role. De Havilland started to push back against these roles, refusing to take parts she didn’t believe in, leading to suspensions from her contract.

Suspensions were a well-worn tactic of the Hollywood studios – if stars refused to take part in a film they didn’t like or acted “inappropriately” for a star, the studios would suspend them from their contracts for weeks at a time. Under suspension, stars neither received pay nor were permitted to seek work elsewhere.

Actors on contract to studios had little control over the direction of their own careers, as they were forced to accept roles they did not like or face weeks of unpaid unemployment if they refused their studio’s wishes (and in reverse, they could not seek out plum roles at other studios if denied a loan-out agreement by their home studio).

Studios often used suspension as a control and money-saving tactic. If they felt stars were getting too big for their britches or they simply wished to save money on a salary for a few weeks, studios would offer stars roles that were so ridiculous or out-of-sync with their careers that they’d have no choice but to enter suspension to avoid a potentially career-ending role. Essentially, studios could temporarily lay off their employees for trumped up reasons with little to no repercussions.

Furthermore, if stars were suspended, the time they accumulated while in suspension was tacked on to the end of their contract. When de Havilland reached the end of her seven-year contract in 1943, she owed Warner Bros. twenty-five weeks of extension time. She accepted the terms of her contract initially, determined to see out the time and move on to a more favorable contract at the end of it.

Before she was halfway through, de Havilland felt compelled to take another voluntary suspension to avoid making a film on loan to Columbia she was certain would fail. Naturally, Warner Bros. was dismayed with her actions, and it quickly became clear that her remaining contract time would both be miserable and seemingly unending.

De Havilland’s agent and lawyer called her attention to an interpretation of California contract law limiting personal service contracts to seven calendar years, no exceptions. Armed with this knowledge, de Havilland sued the studio and the two and a half year court battle of “De Havilland vs. Warner Bros.” began with a hearing ruling in Olivia’s favor on November 4, 1943. The courts ruled that contracts in California, no matter the circumstances, could not exceed seven calendar years.

Warner Bros. immediately appealed the decision dragging de Havilland into unending sessions of cross-examination. They also sent out a letter to all the other studios, essentially black-listing her in Hollywood.

The studio’s lawyers tried to paint de Havilland as a pretentious actress trying to break her contract when she had turned down six scripts to accumulate the extension time. De Havilland bore the studio’s claims with grace, patiently explaining in court over and over that the work she refused were roles not suited to her that could have potentially hurt her career, as well as the film and the studio. She even argued that in many instances directors advised her not to take the roles either.


Ultimately, Warner Bros. lost the appeal and were denied the request to appeal a third time since there was no new evidence. Olivia had finally secured her freedom as an actress and went on to an impressive string of successes as a free agent, including two Oscars for To Each His Own (1946) and The Heiress (1949). With more agency over her career, de Havilland was able to take on complex, nuanced roles that represented more true and diverse representations of women. From the embittered Catherine Sloper of The Heiress to a mental patient in The Snake Pit (1948) to an unwed mother in To Each His Own, De Havilland conquered unglamorous roles that allowed her to display the range she craved.

While de Havilland has been immortalized onscreen in roles she fought tooth and nail to portray, her name is also an important legal precedent. To this day, lawyers involved in personal service contract disputes cite the “de Havilland Decision.”

She also was responsible for putting a significant chink in the impenetrable armor of the studio system. With the de Havilland decision, studios could no longer use suspensions as a financial solvency tactic or punishment against stars. They lost the prospect of endless services from their actors, as well as the ability to control the career trajectory of the talent they deemed their property.

De Havilland made it possible for all actors to determine their own paths and be more selective in the roles they felt jived with their persona and the image they crafted with the help of the studio publicity machine. In 1950, Jimmy Stewart would essentially dismantle the contract system becoming the first actor to take percentage points on a film over a studio salary. But it was de Havilland and the decision that bears her name that first gave actors the right to control their own destiny.

Unfortunately, no definitive biography of Olivia de Havilland exists, and most books published about her either rely heavily on hearsay and speculation or focus exclusively on “Gone with the Wind.” The information from this article was derived from her most recent interview with Entertainment Weekly in their Jan. 30/Feb. 6th issue, as well as from an article entitled “Olivia de Havilland vs. Warner Bros.” in the Vol. 6, Num. 3 Issue of American Classic Screen (which was brought to my attention by Karina Longworth and her fabulous podcast “You Must Remember This”).

Maureen Lenker

About Maureen Lenker

Maureen Lee Lenker is a writer, actress, director, and producer. She has written for Turner Classic Movies, Stage Raw, @ This Stage, LA Weekly, and more. She is also working towards an MA in Arts Journalism at USC, reporting on arts, theatre, and entertainment. When not at USC, she works on theatre productions throughout Los Angeles (primarily as an assistant director). She is a native Angelino who hates driving and cites peacoats and scarves as her favorite clothing items. An Anglophile, she attempted to fulfill her dream of attending Hogwarts by completing her master’s in British History at the University of Oxford. She is a cock-eyed optimist, rom-com aficionado, classic movie buff, musical theatre geek, and general pop culture enthusiast.