You can have a lot of fun playing with the familiar disclaimer that appears on the screen before a TV drama or movie starts.
A mischievous recent line, shown at the beginning of every episode of inventing ana, the Netflix show about Anna Sorokin (aka Anna Delvey), the fake heiress, says, “This whole story is completely true. Except for the parts that are completely made up.
It’s a stunt that is now almost a movie cliché, with notable examples including the opening words of the 1964 apocalyptic comedy, doctor strange love. “It is the stated position of the United States Air Force that its safeguards would prevent events such as those depicted in this film from occurring,” director Stanley Kubrick informs the audience.
However, even an unlikely and highly fictional story can be considered to have impugned real people. And when some of those unlikely events have actually occurred, then litigation is an increased risk.
Last week, the former vanity fair photo editor portrayed as a key character in inventing ana chose to ignore the playful tone of the show’s disclaimer and said he would sue Netflix over his portrayal.
Rachel DeLoache Williams, former partner and financial victim of Anna Sorokin, who used social media to break into the bank accounts of American high society, is just one of the latest combatants in an increasingly crowded legal battlefield. Her defamation lawsuit against her argues that she appears to be “a greedy, snobbish, disloyal, dishonest, cowardly, manipulative and opportunistic person.”
Netflix has not commented on the case, but its claim is one of several recent attempts to obtain compensation from the streaming giant after an allegedly unfair performance in a drama. Former Soviet chess grandmaster Nona Gaprindashvili has taken action against the company for involvement in his hit drama queen’s gambit that her character had not regularly competed against men. And Linda Fairstein, a former Manhattan prosecutor, was upset when she felt she looked racist in when they see usa drama about a miscarriage of justice in 1989. The docu-drama Operation Varsity Bluesabout corruption in the US college admissions system, also sparked a lawsuit from parents who believed the program destroyed their reputation.
Behind this series of legal disputes is a new appetite for drama based on real-life stories. Now they feed such a steady diet of box-set series that viewers hardly notice how much they’re consuming, whether they’re reveling in old scandals or retracing the steps of a notorious criminal.
The contemporary feel is at a particular premium. Before Netflix pounced on Sorokin’s plot, Williams was ready to develop a drama based on her book, my friend anna, with HBO. He did not cooperate with Netflix, which had signed a £240,000 rights deal with Sorokin, thus missing out on the opportunity to influence his version.
Those in the know frequently point out how naive it is to try to punish the creators of a drama or movie that has made a hurtful impression. In the United States, cases rarely make it past the first stage of proceedings, yet more plaintiffs are now risking their arms. It is believed that the legal area, such as musical plagiarism, is constantly changing and is worth a try.
As Christopher Gabbitas of the British firm Keystone Law sees it, on both sides of the Atlantic, the common misconception is that a life story belongs to the individual. “There is still this idea that we have some form of property and also the people who can grant rights. But there is no legal basis for that in English law; No trademark, copyright or intellectual property protection. And in most territories nothing prevents the producer of a drama from doing what he wants.”
However, the situation is becoming more complex. So far there have been no major legal achievements, but the rapid pace of translation from real life to screen is dangerous. As London-based media lawyer Dominic Crossley of Payne Hicks Beach points out, the passage of time is useful because it allows an accepted version of an incident to emerge. Controversial stories make for good drama and storytelling can mean taking sides. And it’s no good taking a whimsical tone about alleged betrayal in the hope that it will help defend a libel suit. “Producers of ‘real-life dramas’ can’t have their cake and eat it,” Crossley argues. “If they want their show to be considered ‘true,’ they can’t escape legal responsibility if they mess up and defame one of the characters or ignore their privacy. Newspaper journalists and authors tend to have rigorous editorial processes before submitting their account of recent events to the paper and generally approach topics for their response. It seems to me that the producers of these often highly sensational dramas need to apply the same disciplines. The damage done to an individual played by an actor in one of these big-budget dramas may well be at least as acute as that caused by a written narrative.”
Another new factor is the change in the role of a streamer like Netflix. It now has the status of a production studio, rather than a place to view the work of others. Winning lots of Emmys can be nice, but it comes with a greater artistic responsibility.
In Britain, entertainment continues to have a wide legal reach, even with true stories. Gabbitas sees our adherence to the 1998 Human Rights Act as a key protection. “Until such time as we withdraw, our courts will still make judgments about the balance between article 8, which states that people have the right to a private family life and personal correspondence, and the opposing provisions of article 10, which states the right to free expression of any person, including those who portray other people”.
In Britain, human rights coverage for creative freedom is comfortably backed by old grievances of common law and precedent. By contrast, in the US, the mere identification of a character by their name carries the threat of litigation for invasion of privacy.
However, celebrities may have a harder time preserving their privacy. In 1994, Hollywood star Elizabeth Taylor tried to stop an NBC drama from telling her life story as depicted in an unauthorized biography. But the courts ruled against her because it was felt that she had already lost her privacy by frequently appearing in public and in magazine articles. She established what might be called the “Hello!” principle of “fair play”. And, of course, the existing image of a claimant also matters. If he has a criminal conviction, then he probably doesn’t have a leg to stand on. Get off the phone, Joe Exotic.
Experienced producers tend to make early contact with those they intend to portray. Winning them over to the project means they also get information and greater access to facts. Investors are also more likely to be attracted. Sponsors are reassured if “errors and omissions” insurance coverage is already in place and assurance of that is often based on proof that due diligence has been carried out on any likely risk of libel.
“It’s always better to get the facts from the horses’ mouths and it also helps with publicity for a project,” says Gabbitas, adding that positive contact with the protagonists can prevent a painful bout of “injunctive relief,” something that no tv show wants. Suffer from. This is a fast prohibitive legal move that stops a creative project in its tracks.
It turns out that even the death of a subject does not offer total security. In some places, though not in Britain, surviving descendants may claim to have been defamed. The truth, ultimately, is the best defense for a bold producer. “What is important to understand is that the film or television producer has to produce the evidence,” Gabbitas said. “The responsibility is theirs.”
Once the checks have been made, nervous producers may note that even those who appear defective on screen are sometimes thrilled just to show up. Hotel concierge Neffatari Davis, who befriended Sorokin as she racked up a big room-service bill, seems pleased with the Netflix show and has lovingly posted online about her doomed former friend Anna.
“You are the Thelma to my Louise. And even though I don’t agree with all the things you’ve done in this life… I could never be somber and forget about you,” Davis recently posted.