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Detroit, the new film from director Kathryn Bigelow and writer Mark Boal, endeavors to be an agent of change. But in bringing a searing dramatization of the 1967 riots to the big screen amid contemporary tensions between African-Americans and police, the filmmakers themselves have changed history. As the Los Angeles Times asks, “Does a disclaimer at the end sufficiently cover fictional manipulations in an ostensibly true story?”
The question is not exactly meant to be a legal one. But a discussion of whether the movie loses moral weight because it fictionalizes might not properly begin until one first examines whether Bigelow and Boal needed to make changes to reduce potential liability. In Detroit, the victims’ names weren’t changed. Neither was that of Melvin Dismukes, a black private security guard who was acquitted of felony assault in connection with the events at Algiers Motel, where three young black men were killed and others were battered. The names of the police officers, including the one played by Will Poulter, were changed.
“The legal reasons for this are obvious, given that the real officers were not convicted of criminal conduct,” notes film critic Dann Gire in his write-up of the film.
Is it so obvious?
When marketing a based-on-real-life story, filmmakers have two options: tell the audience “this is how it happened” or tell the audience “this is a fictionalized version of what happened.”
The reality is that neither path automatically fends off a lawsuit. Few probably know this better than Bigelow and Boal, who have a history of adding what the latter calls “pure screenwriting” to historical tales only to be dragged into court. They each took home an Oscar for their 2009 film The Hurt Locker — and each was named in a lawsuit from an Iraq war veteran who claimed the film invaded his privacy and was defamatory. The legal conflict ended in a decisive victory for the filmmakers in 2016 when the 9th Circuit Court of Appeals held that the war film was a matter of public interest and protected speech.
First Amendment protections may be strong, but attorneys like Fox Rothschild partner Lincoln Bandlow prepare for the worst. “If you’re really going to sell something as real facts that really happened, you have to vet those characters like you’re vetting a journalistic piece in The New York Times,” he says.
The seemingly easier road is to do what Bigelow and Boal did for Detroit — change names so as to enjoy other creative liberties in the storytelling. Lisa Callif, an attorney who specializes in clearance work for movies, says case law provides for a certain level of “fictional embroidery” to connect the dots in a story in which information may be missing (there is no video footage of the Algiers, of course, so it’s unclear exactly how the situation unfolded). “You can fill in the gaps when you don’t know exactly what happened as long as that fictionalization is a reasonable inference from what happened in real life,” she says.
While arguably so, merely changing names doesn’t provide legal immunity. There’s a doctrine known as “libel-in-fiction” where so long as the fictional character is identifiable as a real-life individual, that person may sue over false and damaging statements and implications made. As one judge put it, “plaintiff’s case thus becomes ‘It’s me, but it couldn’t be me.’”
To apply it to Detroit, a cop who had worked the beat in the Midwestern city back in 1967 might come forward to claim the Will Poulter character is him — but that he’s not really a racist or didn’t do the things depicted in the film. In fact, as the LA Times notes, David Senak, a real-life officer at the center of the Algiers incident, is still alive and lives a quiet suburban life.
Because Bigelow and Boal didn’t use a real name, the pool of potential plaintiffs is actually larger. Then again, the chances of success for a plaintiff in such a case would be smaller thanks to the legal requirement that a reasonable viewer would have to understand that any defamatory statement was “of and concerning” the plaintiff.
A long list of suing individuals have struggled with meeting this “of and concerning” standard. Among the losers were real estate agents Scott and Melinda Tamkin, who sued CBS after selling a writer on CSI a home and then seeing an episode featuring a slick, attractive, hard-drinking, bondage/porn-watching character named “Scott Tucker” who became a suspect in the murder of his wife, “Melinda Tucker.” More recently, there was Ronee Blakley, a musician and actress who was nominated for an Academy Award for Robert Altman’s Nashville, who sued over What Masie Knew. Blakley alleged that the co-writer of the film (the father of her child) had snuck a “thinly disguised” antagonist into his adaptation of Henry James’ 1897 novel. The lawsuit seemed purposely designed to expand “libel-in-fiction” liability, but the case ultimately failed after the judge ruled that alleged similarities between Blakley and the film character were “either tenuous or common, non-unique occurrences,” and that “statements and alleged similarities cannot reasonably be interpreted as referring to Blakley.”
Bigelow and Boal would thus have an edge in any suit over Detroit, but wouldn’t they enjoy constitutional protection even without the name changes?
Many court cases have examined this question, but consider a decision from an Alabama court just this week. (It hasn’t been reported until now.)
In 2014, Judson Lovingood, a former deputy manager in NASA’s shuttle project, filed a $14 million lawsuit against Discovery Communications over Science Channel’s Challenger Disaster, a film depicting Nobel Laureate physicist Richard Feynman’s investigation of the 1986 disaster that resulted in the deaths of seven crew members. Lovingood alleged the film “ignores or manipulates the rules of evidence and fact while messing with them to manufacture and create false facts in a deliberate effort to be more entertaining and dramatic at the peril of truth.”
Specifically, Lovingood objected to a scene where the actor who played him was shown testifying before a Presidential Commission about a 1 in 100,000 probability of shuttle failure resulting in the loss of the vehicle and the death of the entire crew. The scene was a fabrication. In reality, Lovingood never gave such a representation in testimony. Instead, he and other scientists met with Feynman in a cafeteria. Feynman asked the scientists to write down the probability of the mission not being completed due to the failure of the main engine. Lovingood did provide the “1 in 100,000” figure but thought the distinction that he wasn’t testifying under oath about the possible loss of life to be meaningful and an implication that he ignored significant risks and participated in an effort to conceal the cause of the crash.
On Tuesday, a federal judge in Alabama dismissed the lawsuit, finding that there was nothing so improbable in the scene that would have prompted the film’s producer to obtain a transcript of the hearing to investigate the accuracy. The judge further ruled “there is no evidence from which jurors could reasonably infer that the Discovery defendants had reason to doubt the accuracy of the scenes in the Challenger film or that the defendants’ failure to do more to investigate the accuracy of the two scenes at issue evidences ‘an intent to avoid the truth.'”
In other words, the plaintiff lacked a showing of “actual malice,” meaning the filmmakers didn’t mean to defame him.
Litigator Todd Eagan of Lavely and Singer says because the Detroit riots are of public interest, any suing cop would likewise have to show awareness of falsity or a disregard for the truth. Referring to the filmmakers, he says, “They’ve done research, they’ve conducted interviews, the prosecution believed that these guys committed these crimes.” Talking about the subjects of the film, he adds, “They were acquitted, but is it beyond the pale to form an opinion that they were guilty? I don’t think so.”
To be sure, there have been cases that have become headaches for defendants. Viacom, for instance, is heading to a defamation trial in Georgia over allegedly false statements in its biopic of the 1990s R&B group TLC. (In a bid for reconsideration of a summary judgment, Viacom’s lawyer on Wednesday presented the ruling in Challenger Disaster case to its judge.) And in a decision earlier this year that has unnerved some in entertainment, a New York appeals court revived a lawsuit over a Lifetime biopic, Romeo Killer: The Christopher Porco Story, ruling that too much fictionalization can negate a newsworthiness exception to a privacy law.
In most instances, however, using real names or fake names won’t change the legal equation much for filmmakers. Nevertheless, there could be a problem of perception, not exactly helped by film critics jumping to legal conclusions.
Referring a recent suit filed by 101-year-old actress Olivia de Havilland against FX over her portrayal in Feud: Bette and Joan, Bandlow says he’s concerned about the notion that for a filmmaker to reference a real person, he or she needs that person’s permission. “It’s a tremendous detriment to filmmaking,” he says. “The attempts to control these stories about important events are concerning. We shouldn’t have to wait 30, 40, 50 years to tell these stories on the assumption we can’t tell them until people are dead.”
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