One can have a lot of fun with the familiar warning that appears on screen before the start of a TV drama or movie.
A mischievous recent line, shown at the start of every episode of Invent Anna, the Netflix show about Anna Sorokin (also known as Anna Delvey), the fake heiress, reads: “This whole story is completely true. Except for parts that are fully composed.
It’s stuff that’s now almost a cinematic cliche, with notable examples like the words that open the 1964 doomsday comedy, Doctor strange love. “It is the stated position of the US Air Force that their safeguards would prevent events such as those depicted in this film from occurring,” director Stanley Kubrick’s audience is told.
Yet even a heavily fictionalized unlikely story can be said to have involved real people. And when some of these unlikely events have actually happened, litigation is an increasing risk.
Last week, the former vanity lounge photo editor described as a key figure in Invent Anna chose to ignore the playful tone of the show’s disclaimer and said she would sue Netflix over her portrayal.
Rachel DeLoache Williams, former associate and financial victim of Anna Sorokin, who used social media to smash her way into the bank accounts of upper-class Americans, is just one of the latest fighters on a field increasingly crowded legal battle. Her defamation lawsuit argues that she comes across as “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 seek compensation from the streaming giant after allegedly unfair portrayal in drama. Former Soviet chess grandmaster Nona Gaprindashvili has taken action against the company for involvement in his hit drama Queen’s Gambit that his character had not regularly competed against men. And Linda Fairstein, a former Manhattan prosecutor, was upset when she felt she sounded racist in When they see usa drama about a miscarriage of justice from 1989. The docu-fiction Operation Varsity Bluesabout corruption in America’s college admissions system, also sparked a complaint from parents who felt the show had destroyed their reputations.
Behind this series of legal wrangles is a new appetite for drama based on real-life stories. They now feed such a steady diet of box set series that viewers barely notice how much they’re consuming, whether they’re lapping up tales of old scandals or retracing the steps of a notorious criminal.
The contemporary feel is particularly sought after. Before Netflix rushed into Sorokin’s plot, Williams was set to develop a drama based on his book, My friend Anna, with HBO. She didn’t cooperate with Netflix, who had signed a £240,000 rights deal with Sorokin, and so she lost her chance to influence her version.
Those in the know often point out how naive it is to try to punish the perpetrators of a drama or movie that left a hurtful impression. In the United States, cases rarely make it through the first stage of the procedure, but more and more claimants are switching arms. It is believed that the legal field, like musical plagiarism, is in flux and worth trying.
According to Christopher Gabbitas of UK firm Keystone Law, on both sides of the Atlantic the common misconception is that a life story belongs to the individual. “There is always this idea that we have some form of ownership and the same goes for people who can grant rights. But there is no legal basis for this in English law; no trademark, copyright or intellectual property protection. And in most territories, there’s nothing stopping the producer of a drama from doing whatever they want.
However, the situation becomes more complex. There haven’t been any major legal victories so far, but the rapid pace of translation from real life to screen is perilous. As 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 there’s no point in adopting a fanciful tone when discussing an alleged betrayal in the hopes that it will help the defense of a defamation claim. “Producers of ‘real life drama’ can’t have their cake and eat it,” Crossley claims. “If they want their show to be seen as ‘true,’ then they can’t escape legal liability if they get it wrong and defame any of the characters or don’t respect their privacy. The journalists and writers of newspapers tend to go through rigorous editorial processes before publishing their accounts of recent events in print, and they generally approach the topics for their response.It seems to me that the producers of these often very sensationalist fictions must apply the The damage done to an individual portrayed by an actor in one of these big-budget dramas may well be at least as severe as that done by a written narrative.
Another new factor is the changing role of a streamer such as Netflix. It now has the status of a production studio, rather than a place to observe the work of others. Winning lots of Emmys can be fun, but it comes with an added artistic responsibility.
In Britain, entertainment continues to have broad legal reach, even with true stories. Gabbitas views our adherence to the Human Rights Act 1998 as a key protection. “Until we step down, our courts will still be making judgments about the balance between Article 8, which states that people have the right to private family life and personal correspondence, and the opposing provisions of Article 8. 10, which sets out the right to self-expression for anyone, including those who represent other people.
In Britain, human rights cover for creative freedom is comfortably buttressed by old common law torts and precedents. By contrast, in the United States, simply identifying a character by name carries the threat of an invasion of privacy.
Celebrities, however, may have a harder time maintaining their privacy. In 1994, Hollywood star Elizabeth Taylor tried to block an NBC drama from telling the story of her life as described in an unauthorized biography. But the courts convicted her because it was found that she had already lost her privacy by frequently appearing in public and in magazine articles. He established what might be called the “Hello!principle of “fair game”. And, of course, an applicant’s existing image also matters. If you have a criminal conviction, you probably don’t have a footing to stand on. Step away from the phone, Joe Exotic.
Experienced producers tend to connect early with those they aim to portray. Winning them over to the project means they also get information and better access to facts. Investors are also more likely to be attracted. Donors are reassured if errors and omissions insurance cover is already in place and securing often relies on proof that due diligence has been carried out on likely defamation risks.
“It’s always better to get the facts from the horse’s mouth and it also helps publicize a project,” says Gabbitas, adding that positive contact with the protagonists can prevent a painful period of “injunctive relief”. “, which no TV show wants. suffer from. It’s a quick prohibitive legal move that stops a creative project in its tracks.
It turns out that even the death of a subject does not offer complete security. In a few places, but not in Britain, surviving descendants can claim to have been defamed. The truth, in the end, is the best defense for a daring producer. “What’s important to understand is that the film or television producer has to produce the evidence,” Gabbitas said. “The responsibility lies with them.”
Once the checks are done, nervous producers might keep in mind that even those who are portrayed as flawed on screen are sometimes thrilled to be featured. Hotel concierge Neffatari Davis, who befriended Sorokin as she racked up a hefty room service bill, seems pleased with the Netflix show and fondly posted her doomed former pal online Anna.
“You are the Thelma of my Louise. And while I’m not okay with everything you’ve done in this lifetime…I could never be sleazy and forget about you,” Davis recently posted.