Documentaries, Drama, and Defamation: Creators in Court for “Real Life” Portrayals

Documentaries, television dramas, and reality shows share the ability to portray real people. Productions based on the lives of real people can affect reputations beyond the television screen and inspire defamation lawsuits. Over the past few years, streaming services, such as Netflix and Hulu, have been flooded with documentaries and docuseries relating tales of crime and scandal. As streaming services cater to the “docu-mania” demand for compelling new stories, defamation claims are on the rise as individuals watch their lives unfold on screen.¹[1]Judy Berman, How Docu-Mania Took Streaming by Storm, From Tiger King to WeWork, TIME MAGAZINE (Apr. 1, 2021, 4:17 PM), https://time.com/5951774/new-documentaries-streaming/. Networks and production companies need to be proactive to avoid premiering potentially defamatory material.

Defamation: What is it and how is it proved?

Though its definition varies among the states, defamation is generally defined as publicized false statements concerning the plaintiff that cause or have the potential to cause harm to the plaintiff’s reputation.²[2]McAvoy v. Shufrin, 518 N.E.2d 513 (Mass. 1988). The plaintiff must show, by a preponderance of the evidence, that the statement was (1) defamatory, (2) publicized to anyone other than the defendant and plaintiff, (3) false, and (4) reasonably understood by a third party to concern the plaintiff.³[3]Yohe v. Nugent, 321 F.3d 35 (1st Cir. 2003). Defendants can argue truthfulness of statements as a defense, even though the burden of proof lies with the plaintiff. If a plaintiff successfully presents a prima facie case, the defense may have the opportunity to present an exception to defamation known as the fair reporting privilege. The fair reporting privilege protects entities from liability even if the statements made are considered defamatory.⁴[4]Fair Report Privilege, Digital Media Law Project (Jan. 22, 2021), https://www.dmlp.org/legal-guide/fair-report-privilege. To claim this privilege, a defendant must show that it (1) relied on official public documents or statements from a public official, (2) identified the document or statement as its source, and (3) fairly and accurately used the source.⁵[5]Id.

Operation Varsity Blues: A Family Fights Back

In March 2021, Netflix released a documentary titled Operation Varsity Blues: The College Admissions Scandal.⁶[6]Operation Varsity Blues: The College Admissions Scandal, NETFLIX, https://www.netflix.com/title/81130691. The documentary reenacts meetings and phone calls between wealthy parents and a “mastermind,” Rick Singer, in a scam to have their children admitted to top U.S. universities as elite athletes.⁷[7]Id. This scandal resulted in criminal charges for fifty-seven individuals, over thirty of whom were not yet sentenced at the time the documentary was released.⁸[8]Chris Villani, ‘Varsity Blues’ Trial Pared Down As Another Parent Takes Deal, LAW360 (Aug. 24, 2021, 12:36 PM), https://www.law360.com/articles/1415750. As of August 24, 2021, forty-seven defendants pleaded guilty, one defendant was pardoned by former President Trump, one defendant moved to dismiss charges, and eight remained preparing for trial.⁹[9]Id. Former Staples executive, John Wilson, is one of the remaining eight defendants. Prosecutors allege that Wilson, as a father of three children, paid $220,000 in bribes for his son to attend the University of Southern California (“USC”) as a water polo player and another $1.5 million for his twin daughters to attend Harvard University and Stanford University, respectively, as collegiate rowers.¹⁰[10]Max Jaeger, Son of ‘Varsity Blues’ Defendant Says Movie Defamed Him Too, LAW360 (July 12, 2021, 6:48 PM), https://www.law360.com/articles/1401947/son-of-varsity-blues-defendant-says-movie-defamed-him-too. Wilson’s trial started September 13, 2021, addressing charges of fraud, bribery, and falsely filing a tax return.¹¹[11]Id. The trial is ongoing.

But what if Wilson’s three children were actually elite athletes?

Following the release of the documentary, Wilson filed a defamation lawsuit against Netflix, claiming the streaming service failed to separate him from other parents who already pleaded guilty and ignored evidence of his children’s academic and athletic achievements.¹²[12]Id. As part of the documentary, phone calls between Wilson and Singer were reenacted while photographs of a water polo player were digitally distorted.¹³[13]Id. The depiction of the water polo player led Wilson’s son, John Wilson Jr., to file a connected defamation suit against Netflix. The Wilsons allege that John Wilson Jr. was an accomplished water polo player who was recruited by USC.¹⁴[14]Brian Dowling, Netflix to Face ‘Varsity Blues’ Defamation Suit in State Court, LAW360 (Aug. 19, 2021, 4:56 PM), https://www.law360.com/articles/1414509/netflix-to-face-varsity-blues-defamation-suit-in-state-court. Netflix, however, argued against such allegations during a June 2021 hearing. Wilson attempted to separate his case from that of other defendants who were also accused parents.¹⁵[15]Chris Villani, Netflix Says ‘Varsity Blues’ Defamation Suit Is Judge’s To Toss, LAW360 (June 21, 2021, 6:02 PM), https://www.law360.com/articles/1396004/netflix-says-varsity-blues-defamation-suit-is-judge-s-to-toss. U.S. District Judge Nathanial M. Gorton, District of Massachusetts, denied Wilson’s request, citing a lack of difference between Wilson and the other defendants.¹⁶[16]Id. The judge found that although John Wilson Jr. was an actual water polo player, his achievements were inflated, and he was not at the elite level required for recruitment by USC.¹⁷[17]Brian Dowling, Netflix to Face ‘Varsity Blues’ Defamation Suit in State Court, LAW360 (Aug. 19, 2021, 4:56 PM), https://www.law360.com/articles/1414509/netflix-to-face-varsity-blues-defamation-suit-in-state-court.

The Wilsons’ defamation claims are unlikely to succeed. With the documentary appearing on Netflix and mentioning the Wilsons by name, it is reasonable to assume the second and fourth elements of a defamation suit will be easily met. The statements made in the documentary could be defamatory, under the first element, because it portrays Wilson as a father making illegal bribes to ensure his children’s futures. However, the most difficult element for Wilson to prove will be the third, showing that the statements were false. Based on the criminal charges Wilson faces this September, there is evidence indicating that Wilson provided money to Singer in the hopes of increasing, if not guaranteeing, the likelihood that his children would be admitted to Harvard, Stanford, and USC, respectively, as elite athletes.¹⁸[18]Brian Dowling, Netflix to Face ‘Varsity Blues’ Defamation Suit in State Court, LAW360 (Aug. 19, 2021, 4:56 PM), https://www.law360.com/articles/1414509/netflix-to-face-varsity-blues-defamation-suit-in-state-court.

Netflix, as the defendant, has no burden of proof, and is likely to claim the fair reporting privilege if Wilson can meet the elements of defamation. Massachusetts recognizes the fair reporting privilege and even extends its protections to defamatory statements made by anonymous sources.¹⁹[19]Massachusetts High Court Extends Fair Report Privilege, DIGITAL MEDIA AND DATA PRIVACY LAW BLOG, BROOKS PIERCE (Mar. 25, 2010), https://www.brookspierce.com/digital-media-and-data-privacy-law-blog/Massachusetts-High-Court-Extends-Fair-Report-Privilege.

Power: Resurrecting a Ghost Story

Despite their close connection to reality, documentaries are not the only potential source of defamation lawsuits. The television drama, Power, which portrays a Manhattan drug lord named Ghost, recently encountered its own defamation suit.²⁰[20]Holland v. Lionsgate Entm’t & Films, 2021 U.S. Dist. LEXIS 82444 (S.D.N.Y Apr. 29, 2021). Lions Gate Entertainment Corp., Starz Entertainment Group, and Curtis Jackson, professionally known as 50 Cent, were collectively sued in April 2021 for $1 billion by Cory “Ghost” Holland, a former New York drug lord.²¹[21]J. Edward Moreno, 50 Cent, TV Groups Want Out Of ‘Frivolous’ Defamation Suit, LAW360 (Aug. 19, 2021, 7:23 PM), https://www.law360.com/ip/articles/1414266/50-cent-tv-groups-want-out-of-frivolous-defamation-suit. In the suit, Holland claimed that 50 Cent and the entertainment groups improperly based Power on his life story, which he recorded on an educational CD in 2007 for at-risk youth. Holland also claimed his reputation was irreparably damaged because friends and relatives believe that the show is about his life and, consequently, that he committed the same crimes as the character Ghost, including murder.²²[23]Id. The defense, however, may have a strong case to toss the lawsuit as frivolous, meaning the case is unlikely to succeed on the merits. Even if Holland can show similarities to his life based on the show’s depiction of New York, the drug enterprise, and the nickname “Ghost,” it is unlikely that those similarities are enough to establish a defamation case.²³[24]Id. Additionally, the defense argued that the statute of limitations for bringing a defamation claim already passed.²⁴[25]Id. Defamation suits have a one-year statute of limitations.²⁵[26]Id. Power aired in 2014 and ran its final episode in February 2020. Holland filed his lawsuit in April 2021.²⁶[27]Id. As of May 2021, Holland was still pursuing his claim, even though the court denied his motion for appointment of counsel.²⁷[28]Holland v. Lionsgate Entm’t & Films, 2021 U.S. Dist. LEXIS 82444 (S.D.N.Y Apr. 29, 2021).

When They See Us: Prosecutor Rejects Her Portrayal

Another example of a defamation suit from a television docudrama is Fairstein v. Netflix, Ava Duvernay, and Attica Lock.²⁸[29]Fairstein v. Netflix, Ava Duvernay, and Attica Lock, 2020 U.S. Dist. LEXIS 175524 (M.D. Fla. Sep. 24, 2020). In 2019, Netflix released a show titled When They See Us. The show tells the story of the “Exonerated Five,” formerly known as the “Central Park Five.” The Exonerated Five is a group of teenage boys, including Kevin Richardson, Raymond Santana, Antron McCray, Yusef Salaam, and Korey Wise, who were wrongfully convicted for the rape and assault of a jogger, Trisha Meili, in Central Park in 1989. Fairstein was the New York prosecutor for the Central Park trial. Fairstein claims that she is portrayed inaccurately in When They See Us, as she is depicted engaging in unethical behavior and supporting racially-biased police activities.²⁹[30]Scott Hervey, “Inspired By” Characters In Movies And TV – Defamation Lawsuit As A Spinoff, WEINTRAUB TOBIN (Dec. 3, 2020), https://www.jdsupra.com/legalnews/inspired-by-characters-in-movies-and-tv-16681/. Her defamation claim is seemingly strengthened by Netflix’s own claim that the series was “based on true events” and writer Ava Duvernay’s statement that Fairstein should be held “accountable for her actions in prosecuting the Five.”³⁰[31]Id. Since the premiere of When They See Us, Fairstein was dropped by her book publisher and forced to step down from multiple boards, including three nonprofits and Vassar College.³¹[32]Jonathan Stempel, Netflix must face ex-prosecutor’s defamation lawsuit over Central Park Five series, REUTERS (Aug. 10, 2021, 5:37 AM), https://www.reuters.com/lifestyle/netflix-must-face-ex-prosecutors-defamation-lawsuit-over-central-park-five-case-2021-08-09/. In August 2021, U.S. District Judge Kevin Castel ruled Fairstein has legal standing to bring her claims against Netflix, Ava Duvernay, and Attica Lock, but a trial date has not been set.³²[33]Id.

Windy City Rehab: Vilified for More Viewers

Finally, in a defamation claim concerning the reality television show Windy City Rehab, the show’s host, Donovan Eckhardt, alleges Big Table Media and HGTV purposefully formatted the show to portray him as a villain.³³[34]Eckhardt v. Idea Factory LLC, 2021-L-000298 (Ill. Cir. Ct. July 9, 2021) (Westlaw). Eckhardt’s complaint details every episode of the show’s second season that he believes were creatively edited and produced to manufacture a fake story.³⁴[35]Peter S. Lubin & Patrick Austermuehle, Defamation Lawsuit Accuses Producers and Network of Allegedly Painting Reality TV Star as a Villain, LUBIN AUSTERMUEHLE, P.C. (Mar. 12, 2021), https://www.chicagobusinesslitigationlawyerblog.com/defamation-lawsuit-accuses-producers-and-network-of-allegedly-painting-reality-tv-star-as-a-villain/. Since the show’s release, Eckhardt claims that fans harass him, stating that “he should die and that he deserves to be imprisoned.”³⁵[36]Id. His company, Greymark Development Group, also saw a decrease in profits of approximately $1.15 million.³⁶[37]Id. Considering both emotional distress and defamation, Eckhardt sought actual and punitive damages of more than $2.2 million.³⁷[38]Id. However, Eckhardt’s suit was thrown out in July 2021 after the court determined that his contract with the defendants required the legal disputes to be settled in California rather than Illinois.³⁸[39]Mitch Dudek, Defamation lawsuit filed by ‘Windy City Rehab’ co-host dismissed by Cook County judge, CHICAGO SUN TIMES (July 15, 2021, 11:47 PM), https://chicago.suntimes.com/windy-city-rehab/2021/7/15/22578644/windy-city-rehab-defamation-lawsuit-dismissed-donovan-eckhardt-alison-victoria. The issue of proper forum was a simple fix for this claim, but doesn’t solve the underlying question: Can perception from editing support a defamation claim?

A (Pre)cautionary Tale: Creators Need to be Proactive

The overwhelming amount of television content is a breeding ground for defamation lawsuits. While state legislation and common law precedent enable plaintiffs to bring such claims, discretion ultimately rests with the courts to determine the merits of a claim on a case-by-case basis. With the expansion of documentary-style media content, creators, studios, and their legal counsel should take precaution when basing shows on the lives of real individuals to protect themselves from potential defamation suits.

Written by: Bernadette N. Schneider
Bernadette is a 2022 J.D. Candidate at Brooklyn Law School