By: Melissa Bergmann, Senior Editor
In recent years, the “docudrama” genre has grown in popularity. A docudrama is a television series or film featuring dramatized depictions of real events. This genre includes series such as “Dahmer,” “Inventing Anna,” and “The Act.” Coupled with the recent growth in popularity in this genre is growth in defamation lawsuits filed by the real-life individuals depicted in these movies and television shows.
A defamation suit threatens HBO’s 2022 docudrama “Winning Time: The Rise of the Lakers Dynasty.” The series received rave reviews from audiences and critics, but actual members of the 1980’s Los Angeles Lakers basketball team, nicknamed the “Showtime Lakers,” are less than impressed. In a letter sent to HBO by his attorney, Jerry West (former Lakers basketball player, coach, and general manager) called his depiction in “Winning Time” a “baseless and malicious assault on [his] character.” While West has yet to file suit against HBO, the letter alludes to possible false light and defamation claims, which West has threatened to take “all the way to the Supreme Court.”
However, “Winning Time” contains a disclaimer at the beginning of the first episode that reads, “This series is a dramatization of certain facts and events. Some of the names have been changed and some of the events and characters have been fictionalized, modified or composited for dramatic purposes.” A disclaimer such as this is on par with disclaimers in other docudramas. This leaves many wondering: does a disclaimer protect the creator of a docudrama from liability in potential defamation suits?
The use of disclaimers in media works dates back to 1932 when Irina Yusupov sued MGM Studios for defamation over her depiction in “Rasputin and the Empress.” This lawsuit resulted in Yusupov winning approximately $125,000 (around $2.4 million today), followed by Hollywood filmmakers trying to prevent a similar fate by including “all person and events fictious” disclaimers in films.
To prevail on a defamation claim, public figures, such as those who are commonly depicted in docudramas, are subject to the heightened defamation standard of proving actual malice, along with the traditional elements of defamation. Accordingly, a public figure depicted in a media work must prove the depiction was (1) an assertion of fact; (2) actually false or created a false impression about him; (3) highly offensive to a reasonable person or defamatory, and (4) the show creator knew the representation was not true or made it with reckless disregard for the truth.
Therefore, a disclaimer, such as that in “Winning Time”, can be used by media creators as a defense against the “assertion of fact” element, arguing that no reasonable viewer would believe that the depictions were assertions of fact.
Recent case law favors the assertion that disclaimers cannot absolutely absolve the producers of a docudrama from liability. In Gaprindashvili v. Netflix, Inc. (C.D. Cal 2022), the United States District Court for the Central District of California denied Netflix’s motion to dismiss, concluding that Netflix acted with a “reckless disregard” for the truth, in a case where Nona Gapringashvili brought a defamation claim against Netflix for her depiction in “The Queen’s Gambit.” The court held that the presence of a disclaimer at the beginning of the show, stating that the series is a work of fiction, is a factor in the defamation analysis but is not dispositive. The court noted that Netflix, by “purport[ing] to be set in a historical setting and…referenc[ing] real people and facts,” created “the impression that [it] was asserting objective facts.”
The same court, in Mossack Fonseca & Co., S.A. v. Netflix (C.D. Call 2020), found that the disclaimers at the beginning and end of “The Laundromat” aided in dismissing the plaintiff’s libel case against Netflix. The court held that “no reasonable viewer…would interpret the film as conveying ‘assertions of objective fact.’” The court distinguished Mossack from Gaprindashvili by finding that the defamatory line in “The Queen’s Gambit” was one of “factual detail incorporated into the [s]eries for believability,” while the defamatory depictions in “The Laundromat” were “main plot devices…which are clearly fictional or at least dramatized.”
Will the disclaimer at the beginning of “Winning Time” save the producers from liability for defamation? Legal experts point to one scene in particular that may prove that HBO producers were attempting to make assertions of fact. In this scene, West’s character throws an MVP trophy through an office window and Jerry Buss’s, character “breaks the fourth wall” by looking directly into the camera, saying “Jerry West, head coach of the Lakers, basketball legend, considered a true gentleman of the sport to everyone who doesn’t know him.” Media lawyer, Daniel Novack, believes that by speaking directly to the audience, the show is “basically [telling the audience] ‘trust us, this is real.’” Similarly, Alexander Rufus-Isaacs, the attorney who represented Nona Gapringashvili, said that this scene proves the show’s creators are “vouching for their portrayal of West.”
Given that a disclaimer may be viewed as one element in the defamation analysis, instead of a dispositive factor, docudrama creators should not rely on a disclaimer to absolve them from defamation liability. Instead, as entertainment attorney David Halberstadter suggests, docudrama creators should engage in thorough review when script writing, including a citation to source material supporting any factual statements made.
Mossack Fonesca & Co., S.A. v. Netflix Inc., No. CV 19-9330-CBM-AS(x), 2020 U.S. Dist. LEXIS 250113 (C.D. Cal 2020).
Gaprindashvili v. Netflix, Inc., No. 2:21-cv-07408-VAP-SKx, 2022 U.S. Dist. LEXIS 23304 (C.D. Cal. 2022).