In such films as The Thin Blue Line, The Fog of War and Mr. Death, Oscar-winning documentary filmmaker Errol Morris has won acclaim for his attention to detail in challenging conventional wisdom on historical subjects.
Then last year, Morris was sued by Joyce McKinney, the central figure in his documentary, Tabloid, for allegedly tricking her into appearing in the film.
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Since first being filed, the lawsuit has taken some twists and turns, with some parts being dismissed and others being allowed to continue. If the dispute gets to trial, the case could test some novel legal issues and present a fascinating case study on a reporter’s relationship with his subject.
McKinney became famous in the 1970s after British tabloids presented the tale of the so-called “Manacled Mormon.” McKinney, a former Miss Wyoming, was featured in the press as going to England and abducting Kirk Anderson, a Mormon missionary, and then raping him.
Throughout the years, McKinney has maintained that it was all a hoax, that the tabloids had “concocted” the story based on false information “that Mormons disseminated when McKinney tried to rescue her fiance from the Mormons.”
More than three decades later, McKinney says she was approached to give an interview that would help “clear [her] name” in a Showtime television series about the paparazzi.
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McKinney did talk — to Morris, who used the interview in Tabloid, described in a press release as a work that “pushes the boundaries of documentary film.”
A lawsuit ensued that’s either boundary-pushing itself or crazy as hell.
A Matter of Public Interest?
After McKinney sued Morris as well as producers and distributors of Tabloid, the defendants brought an anti-SLAPP motion on grounds that the lawsuit served to stifle free speech.
In February, Los Angeles Superior Court Judge James Steele was tasked with figuring out whether McKinney stood a likelihood of success in her lawsuit, and to make that determination, he had to decide whether McKinney was a “public figure” and whether her drama was “a matter of public interest.” If so, she’d need to show “malice” to prove any defamation.
Morris and other defendants argued that McKinney was “public” because of her notorious past in England as well as a strange story that popped up a few years ago how McKinney was now running the world’s first enterprise that cloned dogs. They also argued that the story was “public” because the documentary explored the tactics of tabloid journalism, which raised questions about “the condition of American society.”
McKinney disputed this assessment, saying that most of the events that made her a public figure occurred in another country over three decades ago. She also argued that Morris couldn’t inject her into a story of public interest only to use that as the basis for arguing it was a matter of public interest.
Ultimately, the judge sided with Morris, ruling that McKinney was a “limited-purpose public figure” who voluntarily injected herself into the story. The judge also took a look at Tabloid and said “a substantial portion of the film consisted of Plaintiff’s version of the Anderson event.”
Steele doubted whether McKinney could meet the malice standard and ruled that she hadn’t demonstrated a likelihood of success on misappropriation of likeness, intrusion on seclusion, false light and defamation.
However, the judge also noted that “the parties may have entered into the venture with a different understanding of what the project would entail” and declined to dismiss causes of action that were based on “other, non-protected activity.”
As McKinney appeals the limitation of her claims, the case proceeded on her other allegations.
The Release Form
In the lawsuit, McKinney also claims that she was tricked into appearing in the film. Those claims were subject to demurrers this summer.
McKinney did in fact sign a release for Tabloid, presented to her by producer and co-defendant Mark Lipson. The details of how and why McKinney signed her consent to be in the movie are highly unusual, and Lipson’s attorney says it’s all untrue.
Allegedly, after her interview was finished in September 2009, she refused to sign the first version of the release. So Lipson allegedly signed it himself under her name to show her how easy it was. Still, she refused.
Then, months later, in March 2010, Lipson allegedly broke into her home with a new release form and said if she did not sign the paper, her dog would die.
McKinney, who claims she is partially blind, says she was exhausted and didn’t have time to get her glasses, and as Lipson allegedly stabbed her hand with the pen and yelled, “Sign it! Sign it, or the dog will die,” she complied.
But this doesn’t count, McKinney now says.
She argues she only agreed to a Showtime series, and that, of course, it was all under duress. Additionally, she objected to the alleged way the defendants wrongfully took control over some of her property, including photographs and home movies, to use in the documentary.
Quite outrageous and nearly as salacious as the original “Manacled Mormon” story. But at the preliminary stage, the judge’s job is not to determine truth but rather to figure out whether the facts alleged are sufficient to form a legal basis of a lawsuit.
In a ruling on a demurrer in May, Steele allowed some of the causes of action to continue, including fraud, breach of contract and intentional infliction of emotional distress (IIED).
“The court notes that the facts that might form the basis for an IIED that are not based on protected activity are certain actions attributed to Lipson,” the judge ruled. “Examples are the allegations that Lipson stole belongings, stabbed her hand when trying to force plaintiff to sign a release and mocked plaintiff about her dog’s plight.”
Steele also found that Lipson could have been acting as an agent for Morris, so the filmmaker has to answer to these charges too.
However, the judge threw out the conversion allegation.
The problem is that McKinney signed a waiver that covered the use of allegedly stolen materials and didn’t attempt to rescind the agreement after her supposed duress.
Earlier this month, on similar grounds, a judge rejected McKinney’s theft claims against AMC Networks and the distributors of Tabloid over the use of photographs and home video used in the movie. (Some of these parties unsuccessfully attempted to countersue McKinney for tortious interference.) The judge allowed the plaintiff to try again with an amended complaint with additional facts. However, he expressed skepticism and warned it would be their last shot to try an allegation for conversion.
Credit for trimming McKinney’s claims goes to John Stephens and Chantal Hwang at the Sedgwick law firm. The case continues, though, and some of the weirdest parts remain.
Subliminal Manipulation?
If the case makes it to trial, a large part of what’s presented before a jury will focus on the making of Tabloid.
Steve Tidrick, the attorney for McKinney, hopes to get an appeals court to revive the alleged defamatory nature of the published film itself, but even if he doesn’t win on that point, he says that some of it will be discussed anyway.
That’s because McKinney’s claims of intentional misrepresentation and breach of contract — both surviving at this point — include allegations that the filmmakers promised her certain things.
Among them that is the “TV show would depict the fact that she was innocent of accusations that had been leveled against her in England in 1977,” that it would help clear McKinney’s name, that to protect her privacy no home or pets would be photographed and that no defamatory material would be used.
Morris’ interviewing technique is legendary among Hollywood documentary filmmakers. He uses a device called “The Interrotron,” whereby interviewer and subject look onto a projected image of the other from a two-way mirror positioned on the front of the lens of the other’s camera.
It’s a very psychological tactic, and naturally, the lawsuit that has been born by one of Morris’ films is just as cerebral.
Even though Steele expressed his own belief that McKinney’s side of the story was substantially told in the film, Tidrick has introduced some unusual evidence to poke holes — the type of challenging material that would befit a Morris documentary, in fact.
For example, in one document, a declaration is given by Philip Wong, an associate professor of psychology at Long Island University, about how viewers process movies subconsciously.
Similar to the way the band Judas Priest was once sued for using subliminal messages in a song that allegedly caused a teenager to commit suicide, McKinney is now using Wong to push the theory that Tabloid isn’t what it appears to be.
Pointing to material that flashes for very short periods of time in the documentary, Wong declares under penalty of perjury, “In the film Tabloid, manipulation of attention and perception leads to material being presented at the fringes of a viewer’s awareness, which can facilitate the development of rogue beliefs.”
This amazingly strange case continues.
E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner
