A lot of fun can be had messing about with the familiar disclaimer that pops up on the screen before a television drama or film begins.
One impish recent line, displayed at the start of each episode of Inventing Anna, the Netflix show about Anna Sorokin (also known as Anna Delvey), the fake heiress, reads: “This whole story is completely true. Except for the parts that are completely made up.”
It is a trick that is by now almost a cinematic cliche, with notable examples including the words that open the apocalyptic 1964 comedy, Dr Strangelove. “It is the stated position of the United States Air Force that their safeguards would prevent the occurrence of such events as are depicted in this film,” director Stanley Kubrick’s audience is informed.
Yet even a heavily fictionalised, improbable story can be judged to have impugned real people. And when some of those improbable events really did take place, then litigation is a growing risk.
Last week, the former Vanity Fair photo editor portrayed as a key character in Inventing Anna chose to ignore the playful tone of the show’s disclaimer and said she would sue Netflix over her portrayal.
Rachel DeLoache Williams, a former associate and financial victim of Anna Sorokin, who used social media to con her way into the bank accounts of high-society Americans, is just one of the latest combatants on an increasingly crowded legal battlefield. Her defamation lawsuit argues that she appears “a greedy, snobbish, disloyal, dishonest, cowardly, manipulative and opportunistic person”.
Netflix has not commented on the case, but her claim is one of several recent attempts to get compensation from the streaming giant after an allegedly unfair portrayal in a drama. The former Soviet chess grandmaster Nona Gaprindashvili has taken action against the company for implying in its 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 Us, a drama about a 1989 miscarriage of justice. The docu-drama Operation Varsity Blues, about corruption in the college admissions system in America, also prompted a suit from parents who believed the show destroyed their reputations.
Behind this run of legal spats is the new appetite for drama based on real-life stories. They now fuel such a steady diet of box-set series that viewers hardly notice how much they are consuming, whether they are lapping up retellings of old scandals or retracing the steps of a notorious criminal.
Contemporary sensation is at a particular premium. Before Netflix swooped on the Sorokin plot, Williams had been poised to develop a drama based on her book, My Friend Anna, with HBO. She did not cooperate with Netflix, who had signed a £240,000 rights deal with Sorokin, and so she lost her chance to influence its version.
Those in the know frequently point out how naive it is to try to punish the makers of a drama or film that has given a hurtful impression. In America cases rarely make it through the first stage of proceedings, yet more claimants are now chancing their arm. The legal area, like music plagiarism, is thought to be in flux and worth a shot.
As Christopher Gabbitas of UK 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 we have some form of ownership and so are 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 doing what they want.”
The situation is, however, getting more complex. So far there have been no big legal wins, but the fast pace of translation from real life to screen is perilous. As the London-based media lawyer Dominic Crossley of Payne Hicks Beach points out, the passage of time is helpful 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 is no good adopting a whimsical tone to tell of a supposed treachery in the hope it will aid the defence of a defamation claim. “Producers of ‘true life dramas’ cannot have their cake and eat it,” argues Crossley. “If they want their show to be deemed to be ‘true’, they cannot then evade all legal responsibility if they get it wrong and defame one of the characters or disregard their privacy. Newspaper journalists and authors tend to have rigorous editorial processes before committing their account of recent events to paper and generally they approach the subjects for their response. It seems to me that the producers of these, often highly sensationalist, dramas need to apply the same disciplines. The damage caused to an individual portrayed by an actor in one of these big-budget dramas may well be at least as acute as that caused by a written account.”
Another new factor is the shift in the role of a streamer such as Netflix. It now has the status of a production studio, rather than that of a place to watch the work of others. Winning lots of Emmy awards may be nice, but with it comes added artistic accountability.
In Britain, entertainment continues to have a wide legal scope, even with true stories. Gabbitas sees our adherence to the Human Rights Act of 1998 as a key protection. “Until such time as we pull out, our courts will still make judgments on the balance between article 8, which states that people have a right to a private family life and personal correspondence, and the opposing provisions of article 10, which lays out the right to self expression for anyone, including those portraying other people.”
In Britain, the human rights cover for creative freedom is comfortably backed up by the aged torts of common law and precedent. In contrast, in the US the mere identification of a character by name brings the threat of invasion of privacy litigation.
Celebrities, though, can have a harder time preserving their privacy. In 1994 Hollywood star Elizabeth Taylor attempted to stop an NBC drama from telling her life story as depicted in an unauthorised biography. But the courts found against her because it was deemed that she had already forfeited her privacy by frequently appearing in public and in magazine features. It established what might be called the “Hello!” principle of “fair game”. And, of course, the existing image of a claimant also matters. If you have a criminal conviction then you probably don’t have a leg to stand on. Step back from the phone, Joe Exotic.
Experienced producers tend to make early contact with those they aim to portray. Winning them over to the project means they also gain insights and greater access to the facts. Investors are also more likely to be attracted. Backers are reassured if “errors and omissions” insurance cover is already in place and securing that often rests on proof that due diligence has been carried out on any likely defamation risks.
“It’s always better to get the facts from the horses’ mouths and it helps with the publicity for a project too,” says Gabbitas, adding that positive contact with protagonists can prevent a painful bout of “injunctive relief”, something no TV show wants to suffer from. This is a quick prohibitive legal move that stops a creative project in its tracks.
Even the death of a subject, it turns out, does not offer total safety. In a few places, although not in Britain, surviving descendants may be able to claim they have been defamed. Truth, ultimately, is the best defence for a bold producer. “What’s important to understand is that the film or TV producer has to produce the evidence,” said Gabbitas. “The onus is on them.”
Once the checks have been done, nervous producers might bear in mind that even those who are portrayed as flawed on screen are sometimes delighted just to be featured. The hotel concierge Neffatari Davis, who befriended Sorokin while she built up a mighty room-service bill, seems pleased with the Netflix show and has posted online fondly about her old, convicted pal Anna.
“You’re the Thelma to my Louise. And even though I don’t agree with all the things you’ve done in this lifetime … I could never be shady and forget about you,” Davis recently posted.
