Can celebrities sue over depictions in fictional shows? The track record is mixed.
The popular show “Love Story: John F. Kennedy Jr. & Carolyn Bessette” is the stuff of nightmares for actress Daryl Hannah. Love Story is a limited series currently streaming on FX/Hulu (owned by Disney). Hannah is part of the story, having been in an on-again, off-again situation with Kennedy from the late 1980s through the early 1990s.
In a recent New York Times op-ed piece, she wrote: “A recent tragedy-exploiting television series about John F. Kennedy Jr. and Carolyn Bessette features a character using my name and presents her as me. The choice to present her as irritating, self-absorbed, whiny and inappropriate was no accident."
Party People
A scene in John’s loft depicts an over-the-top party that includes Hannah’s Hollywood friends using cocaine, which has been placed on a priceless Kennedy family heirloom. Meanwhile, Hannah is seen off to the side, standing on her head. She is not seen indulging in the party platter or using any other drug.
Though she’s not on camera sniffing, smoking, or otherwise using illegal substances, Hannah’s appearance and manner in the film strongly suggest she has been getting down. A not-so-subtle suggestion.
Defaming The Famous
Defamation law is designed to provide individuals with a remedy for false statements that harm their reputation. The landmark Supreme Court case New York Times Co. v. Sullivan, addressed the First Amendment’s free speech protections and established the "actual malice" standard for defamation claims involving public officials or public figures.
The high court’s high standard for public figures requires well-known plaintiffs to prove, among other considerations, that the defamatory statements were made with actual malice, knowledge of falsity or reckless disregard for their truth or falsity.
In Hollywood and most other jurisdictions, a defamation suit brought by a public figure plaintiff would generally need to establish with clear and convincing evidence that:
- A false statement of fact, not just opinion or fiction, was made.
- The false statement was made with actual malice, meaning the publication was made despite knowing the statements are false or with reckless disregard to their truth or falsity.
- Publication of the false statement to third parties.
- Reputational damage.
Insatiable
Since the COVID-19 pandemic, families have been opting for stay-at-home movie nights. As a result, streaming services have increased in popularity, and so has their appetite for new material. Shows that are based on “real life” stories have become a staple. As these programs have increased in number, so have defamation suits brought by individuals whose exploits were depicted in a work of fiction television program.
- The Queen’s Gambit: Chess champion Nona Gaprindashvili sued Netflix for a line in the series stating that she "never faced men." While the show is fictional, the court rejected a motion to dismiss, stating that a fictional work is not immune from liability if it defames a real person. The case resulted in a private settlement.
- The Wolf of Wall Street: In the motion picture “Wolf of Wall Street”, a minor character named Nicky Koskoff is depicted as engaging in unsavory and illegal behavior. Andrew Greene, who was a director at the Wall Street firm Stratton Oakmont between 1993 and 1996, sued the filmmakers on the grounds that the Koskoff character presented a defamatory portrayal of himself. The lawsuit was dismissed and a federal appeals court affirmed the dismissal.
- When They See Us: based on the 1989 Central Park jogger case, where five Black male suspects were falsely accused of rape and assault and then prosecuted by Linda Fairstein of the Manhattan District Attorney’s office. The former prosecutor sued Netflix, alleging that the series “depicts Ms. Fairstein — using her true name — as a racist, unethical villain who is determined to jail innocent children of color at any cost.” Fairstein and Netflix settled the case.
- Feud: Bette and Joan: Olivia De Havilland sued FX, alleging that the producers of Feud portrayed her as a profane gossip, that her likeness was used without permission, and the portrayal damaged her reputation for "integrity, honesty, generosity, self-sacrifice and dignity". The California Court of Appeals ruled that the show was not defamatory and that creators have the right to fictionalize historical figures under the First Amendment. De Havilland appealed to the U.S. Supreme Court, but review was denied.
A Sophie’s Choice
Hannah can always choose to file a defamation lawsuit against the movie for its depiction of her. The question is whether it’s worth it. Decisions in celebrity defamation cases have a mixed track record. While speculating about potential litigation by Hannah is better left to Las Vegas oddsmakers, some factors the Kill Bill star may want to consider in making her decision:
- Her real name was used in the “Love Story” series, which may be to her advantage.
- Filing suit can be a good public relations move to show a "fighting back" attitude.
- A defamation suit will allow the defendant to scrutinize her personal life in search of evidence, which may be embarrassing.
- Is the Streisand Effect in play? A high-profile lawsuit may be a mixed blessing; it will keep her name in the news and a lawsuit (or op-ed, for that matter) can draw more attention to the movie.
- Truth is an absolute defense.
Whether or not Daryl Hannah decides to sue, it’s clear that based-on-a-true story films are here to stay. It’s unlikely Hannah will be the last actor faced with this decision.
Related Resources
- Female Grandmaster's Defamation Suit Against Netflix's The Queen's Gambit Can Proceed (FindLaw’s Legally Weird)
- Libel, Slander, and Defamation Law: The Basics (FindLaw’s Law and Daily Life)
- Sex, Fame, Defamation, and Racketeering: Just Another Day For Kim Kardashian and Ray J (FindLaw’s Legally Weird)
