7:15am PT by Eriq Gardner
Hollywood's Top 10 Nearly Incredible Lawsuits from 2016
Every year for the past decade, THR, ESQ has picked its top legal disputes from the entertainment and media industry. (Here was 2015 for example.) The exercise may sound strange or silly, but it's become a good opportunity to take a broader view of the media business and spotlight pressing issues and hot conflicts that require resolution in courts.
But what does one do about a year defined by its surreality? No Hollywood scriptwriter could have credibly plotted the unfolding events from 2016, yet it all happened. Well, maybe not the Hillary Clinton-run child sex ring being run out of a pizzeria in Washington, D.C. Nevertheless, comfortable assumptions about hallowed institutions were overrun by an appetite for sweeping change.
So in light of this, we're taking a detour from our typical year-end list. While recapping big lawsuits and court decisions can offer insight about problem areas in the industry, we also believe there's something instructive about never-filed litigation. Some of what's below is born of bluster — big threats that speak to the art of intimidation. Other items on the list were never actualized, but earned enough attention to warrant the possibility of something coming. Finally, there are still zones of legal ambiguity that perhaps imagination can address best.
Forgive us for flirting with fake news, but here, in reverse order, are the top 10 lawsuits from 2016 that didn't actually happen (but very well could have):
10. Donald Trump sues The New York Times over its article on unwanted advances towards women.
In October, a few days after a scandalous outtake of "Access Hollywood" showed Trump boasting about grabbing women, The New York Times published a story featuring two women accusing him of once touching them inappropriately. Trump's lawyer wrote the paper that the article was "reckless, defamatory and constitutes libel per se," but the paper refused a retraction, responding that the women spoke out on "an issue of national importance" and even hinting that Trump was libel-proof. The president-elect once told supporters of his wish to "open up" libel laws by presumably taking away the requirement that public figures show actual malice in order to prevail. It remains to be seen whether Trump will — or even can — shape judicial interpretation of First Amendment principles. (Plus, would it really be to Trump's benefit?) In the meantime, Trump has followed up on his threat to sue the New York Times, and as a result, the nation surely will be paying avid attention to what's uncovered during the discovery portion of the dispute when the paper attempts to demonstrate the "substantial truth" of its report.
9. 21st Century Fox sues Roger Ailes over alleged use of corporate money to hide sexual harassment.
Former Fox News chief Roger Ailes departed the cable news network after Gretchen Carlson and other women accused him of harassment. But in saying adieu to Ailes, Fox agreed to advance his legal costs and indemnify him in ongoing litigation from Andrea Tantaros. Then came reports that during his time at Fox News, Ailes spent millions of the network's budget to investigate troublemakers and settle claims in secrecy. Did Ailes act in "bad faith," in a manner opposed to the best interest of 21st Century Fox? A lawsuit playing out in Delaware Chancery Court may provide an answer. In filing suit against Ailes, the Murdochs surely aim to convey a strong message that they will no longer condone improper behavior from the corporation's executives.
8. Taylor Swift and Bill Cosby team up for a lawsuit against Kanye West over nude portrayals in "Famous" music video.
In June, hip hop star Kanye West released a jaw-dropping video for "Famous" featuring several celebrities in bed together without any clothes. When the video came out, we analyzed the potential legal claims including Lanham Act and rights of publicity. Since our post, the U.S. Supreme Court declined to take up a case posing the question of whether a realistic portrayal of a person in an expressive work is protected by the First Amendment. But thanks to the unlikely team of Taylor Swift and Bill Cosby, we could soon get more clarity. Swift is currently taking on an alleged groper while Cosby continues to defend himself from allegations of sexual assault, but both found the bandwidth to accuse West in a lawsuit of violating their rights by implying their consensual performance in his video. West is primed to argue his video constitutes transformative art.
7. MGM sues Apprentice crewmember for leaking unflattering videos of Donald Trump.
After The Washington Post published audio of Access Hollywood's then-host Billy Bush having a misogynistic conversation with Donald Trump, there was some speculation that the Republican presidential candidate would sue NBC for releasing the tape. But having worn a microphone on an entertainment news show's bus, Trump probably would have a hard time showing he wasn't aware of being taped for the purpose of an eavesdropping claim. What "pussygate" did trigger, however, was a mad scramble by reporters to find video and audio outtakes from Trump's time on The Apprentice. Bill Pruitt, a producer on the first few seasons of the show, helped whet appetites by tweeting, "I assure you: when it comes to the #trumptapes there are far worse." Nearly immediately, there was rumors of a $5 million leak fee and reports that producer Mark Burnett was threatening staffers. However, MGM owns the tapes and asserts it is under contractual requirements restricting release, so when The Intercept anonymously obtained footage of Trump making racist comments behind the scenes on The Apprentice, MGM filed a lawsuit against a "John Doe" for breaching the confidentiality provisions of a contract. Besides the issue of whether or not MGM can compel a reporter to divulge a confidential source, the dispute raises questions about legality of a broad silencing pact as well as the true purpose of the leaking Apprentice staffer's contract. Was it just meant to deter Apprentice spoilers before they aired?
6. The Equal Employment Opportunity Commission takes on systemic gender discrimination in Hollywood.
For more than a year, prompted by a petition from the American Civil Liberties Union, the EEOC has probed why it is that female directors represent just a tiny fraction of hirings on studio movies. Is it systemic discrimination? With a new administration incoming, the federal agency is now moving swiftly. The EEOC has now filed a commissioner's charge and is serving subpoenas to entertainment companies to uncover more about the industry's hiring practices. Fox, Paramount, Warner Bros., Disney and Universal are expected to defend staffing decisions as protected by the First Amendment while some advocates are hopeful of resolution through a consent decree whereby studios pledge specific steps including mentorships and adjustments in interview practices to rectify bias. But if government oversight remains on the table — and under Trump, such marketplace interference would raise eyebrows — expect Hollywood to put up a big fight.
5. The Beatles sue Donald Trump for playing the band's music at campaign rallies.
In February, Donald Trump won his first primary — in New Hampshire — and television audiences got a chance to see something they rarely do: the Beatles’ music being broadcast on TV. Trump soon thereafter stopped playing "Revolution" at campaign rallies, and it doesn't take a genius to figure out why. Throughout his presidential campaign, Trump regularly received demands from musicians to stop playing their music. Apple Corps Limited — owned by Paul McCartney, Ringo Starr, John Lennon’s widow Yoko Ono, and the Estate of George Harrison — wanted more. After Ivanka Trump took the stage at the Republican National Convention to a version of "Here Comes the Sun," the Beatles filed a lawsuit. The band's claim that repeated use of its songs convey the false impression that members are associated with, or endorse, Trump will be worth watching. Given all the objections from musicians, most people may now realize that Republicans and musicians don't see eye to eye and that use of a song doesn’t imply anything. There are also quirky issues raised by performance of pre-1972 recordings.
4. O.J. Simpson's "Dream Team" sues over their depictions in The People v. O.J. Simpson.
Well, what did you expect? The hit FX crime anthology series may have been critically adored and a commercial smash, but the adaptation of Jeffrey Toobin's book about the murder trial of last century also dramatized trial lawyers. As in, folks whose career occupation is litigation. As Al Cowlings will attest, a series like this not ending in a lawsuit would be miraculous, almost deserving of an award. Producers dispensed with any notion of buying phony "life rights," but couldn't dodge claims from Robert Shapiro, Alan Dershowitz and the Kardashian sisters (on behalf of their late father). On the bright side, the potential civil trial offers hope of a sequel.
3. Infowars' Alex Jones sues Facebook for teaming up with ABC News to spotlight "fake news."
Concern over how fake news was tainting American democracy prompted Facebook to partner with ABC News to flag stories appearing on the social media site suspected of being bogus. Thereafter, radio host Alex Jones, founder of Infowars, an alleged source of much conspiracy mongering, threated litigation against Facebook if it allowed The New York Times to promote its stories without labels while “censoring” Infowars. What happened next? Well, after a bizarre campaign to get the Federal Communications Commission to take up Facebook's actions as outside the spirit of net neutrality (endangered, by the way), he sued for defamation and intentional interference with prospective economic advantage. It's still too early to predict Facebook's defense of its "fake news" tagging program. The Mark Zuckerberg company surely will answer Jones' charge of an impingement of the First Amendment by bringing up its own free speech rights. More uncertain is whether Facebook will attempt to invoke Section 230 of the Communications Decency Act. Remember that Facebook is a technology company, not a media company.
2. Gawker sues Peter Thiel for secretly funding Hulk Hogan's lawsuit over a sex tape.
Speaking of media companies, this has been a bad year for them. From Gawker's bankruptcy after the Hulk Hogan judgment to Rolling Stone's own trial loss, with charges of rampant political bias in between, journalism outlets have suffered a loss of respect and trust among the public. Some of this may be well deserved, but the shocking revelation that Silicon Valley billionaire Peter Thiel secretly provided financial backing for Hogan's privacy suit over a sex tape pressed the media's buttons like nothing else. So maybe revenge for revenge (Matthew 5:38) makes sense? In October, after selling most of its assets to Univision for $135 million, Gawker began eyeing a lawsuit against Thiel. Gawker settled up with Hogan, but carved out the ability to go after Thiel. Nick Denton's former shop now is asserting a prima facie tort under New York law with the hopes of showing that Thiel intentionally inflicted harm without excuse or justification and motivated solely by malice. At stake is the prospect of more billionaires with a grudge funding litigation against media outlets. Hogan's lawyer says that all Thiel did was "level the playing field" against a legally advantaged media site.
1. Donald Trump sues The New York Times over a bombshell report about his taxes.
Trump's threats against The New York Times over alleged groping attracted the most attention, but Trump's other threat against the paper for disclosing that he took a $916 million loss on his 1995 income tax returns is arguably the more provocative menace. Why? For starters, there are very broad criminal and civil provisions in both federal and state law (see here and here for example) that prohibit any persons from violating the confidentiality of tax information. When The New York Times moved forward anyway — after its editor Dean Baquet said he'd risk jail to publish Trump's taxes — many First Amendment lawyers opined that the paper was on solid footing so long as it didn't participate in illegally obtaining the tax returns. The principle harkens to Bartnicki v. Vopper, a 2001 Supreme Court case where media defendants escaped liability for publishing intercepted cellphone conversations. But that's just what First Amendment attorneys say. Ever since The New York Times escaped punishment for publishing the Pentagon Papers, there's been a feeling of near legal invincibility on the part of media outlets and their lawyers. As Hogan's case against Gawker showed, however, publishing truthful information obtained from sources won't always overcome privacy claims. What's more, there are potential cracks in the Barnicki defense. In August, for example, in a lawsuit against ESPN for publishing an NFL star's medical chart, a Florida judge seemed to implicitly bless the plaintiff's theory that when a media outlet "accepts information from a source with knowledge of the illegality, [that media outlet] has unlawfully obtained the information and is not shielded against liability for subsequent disclosure." The case is in its early stages, but there are other decisions (like in Boehner v McDermott) that have chipped away at Barnicki. With all of that in context, Trump's lawsuit against The New York Times over tax disclosures shouldn't be taken lightly. Nor should the recent comment at Harvard University by former Trump campaign manager Corey Lewandowski that Baquet indeed "should be in jail" for publishing tax returns. Trump hasn't made any move on that front yet, but Sen. Jeff Sessions, his pick for attorney general, hasn't been particularly kind to press freedoms in the past, for example opposing a federal shield law that allows reporters to protect the identity of their sources (it "would encourage more leakers," he said) as well as putting up a roadblock on strengthening the government's open records laws. Plus, Trump will now be filling nearly 100 judicial vacancies, beginning with a new justice on the Supreme Court.