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This is a legally hazardous time for movies and television shows that are loosely based on true events. Several lawsuits concerning fictionalized history are in the advanced stages with forthcoming decisions primed to articulate First Amendment principles and possibly set boundaries for filmmakers.
One case concerns The Wolf of Wall Street, the Oscar-nominated 2013 film directed by Martin Scorsese and starring Leonardo DiCaprio as convicted stockbroker Jordan Belfort. The production companies associated with the movie — including Paramount Pictures, Red Granite Pictures, Scorsese’s Sikelia Productions and DiCaprio’s Appian Way Productions — are being sued by Andrew Greene, who in the mid-1990s was general counsel at Belfort’s former firm Stratton Oakmont.
Greene contends in his lawsuit that he was the basis for the character of Nicky “Rugrat” Koskoff and was “portrayed as a criminal, drug user, degenerate, depraved, and/or devoid of any morality or ethics.”
In October 2015, U.S. District Judge Joanna Seybert rejected Greene’s privacy claim, but allowed the defamation claim to survive with the note that Greene would have some work to do in order to eventually prevail in the case. Specifically, Greene would have to establish that the producers were grossly negligent when it came to whatever was false about Koskoff in the movie.
Since the decision, both sides have engaged in discovery. Now that Greene’s case is at the summary judgment phase, the judge will examine whether there are any triable issues of fact in either dispensing with the lawsuit or moving it to trial. Did Greene party with prostitutes at a bachelor party with sterling silver trays containing illegal drugs? Was the film substantially true? Would an ordinary reasonable viewer associate Greene and Koskoff? Yes, yes, and no, say the defendants.
On Monday, Greene submitted his summary judgment opposition brief along with collected pieces of evidence including depositions from Scorsese, DiCaprio and screenwriter Terence Winter. One highlight is Greene’s argument speaking to why he’ll be able to satisfy the actual malice requirement for a public figure asserting defamation.
“While a defendant’s mere failure to investigate is not sufficient to satisfy reckless disregard [of the truth], its failure [to] properly research and investigate published assertions within the four categories of libel per se, that it has a reasonable belief or opportunity to research, is clear and convincing evidence of reckless disregard,” states Greene’s memorandum.
Libel per se refers to false statements accusing an individual of criminal or immoral activity or something denigrating one’s ability to perform his profession.
The notion that a failure to research can amount to actual malice is worth a pause given that the subject will also be featured in a soon-to-be-argued appeal in Olivia de Havilland’s lawsuit against FX over the way she was depicted on the Ryan Murphy series Feud: Bette and Joan. In that dispute, a California judge in September allowed the 101-year-old actress to move forward on a false light claim. “Remember, Ms. de Havilland was alive,” said the judge at a hearing. “She could’ve answered questions [from Feud writers].”
Similarly, Greene is attacking what Wolf of Wall Street creatives did and didn’t do when making a film based on a book by Belfort.
“What is most concerning, bordering upon egregious, is that Defendants seek the support of Jordan Belfort in their defense generally and in furtherance of their motion for summary judgment,” writes Greene’s attorney Aaron Goldsmith. “Jordan Belfort is a man, as the Court is well aware, who has admitted to regularly and pathologically lying to customers, colleagues, law enforcement and Courts since he started Stratton Oakmont. The declaration of and reliance upon Mr. Belfort for a source of any information is utterly reckless, if not wholly disingenuous on the part of Defendants in all aspects of the film’s production and this litigation. Arguably, it should be accepted alone as sufficient proof of Defendants’ reckless disregard for the truth in producing this film.”
Goldsmith then adds that “the three individuals most responsible for script development were Terence Winter, the screenwriter; Leonardo DiCaprio and Director Martin Scorsese. All three have discussed under oath their very limited attempts to research the accuracy of the portrayals in the film. In fact, a review of the relevant transcripts shows that other than conversations with Mr. Belfort, the three (3) men did little other than generic research of Wall Street businesses as well as on-site reviews of the offices where Stratton Oakmont once operated and the house occupied by Mr. Belfort during the relevant time for the film. Such limited research regarding portrayals of real-life incidents and individuals is clear and convincing evidence of Defendants’ reckless disregard for accuracy.”
During his testimony (see here), DiCaprio was asked about his research for the role.
“I took a tour of Wall Street,” he answered. “I read the book, observed people in New York that were randomly in that business; other than that, I don’t recall.”
In his own deposition (read here), Scorsese said he never spoke to Belfort nor any other individuals associated with Stratton Oakmont. Does it matter? Scorsese also testified, “I think we have to go back to the book, and I think one has to think in terms of like the voiceover from Goodfellas for example, or even the voiceover from the extraordinary British film made in the late ‘40s called Kind Hearts and Coronets, which has a very restrained humor to it, and the main character is doing not very nice things, but his voiceover presents it in another light in his point of view; and so it’s somewhat — it has the irony of contradiction and how one can compartmentalize in one’s life, I think.”
Should filmmakers treating real-life subjects be allowed to do a story that’s based on someone’s perspective, which might not always be accurate as it pertains to incidental characters?
“Those characters existed to tell Jordan’s story,” testified Winter in his own deposition. “So if we had to combine one person into three in order to tell Jordan’s story, then that was fine. It didn’t matter to us if we needed to switch — swap out characters, change their names, change their characteristics or behavior.”
Greene is essentially arguing this type of story should be out-of-bounds.
“Screenwriter Terence Winter testified during his deposition very clearly that factual accuracy was not important to Defendants in developing the script and film production,” states his memorandum. “The only concern Defendants had was to portray the mania of Jordan Belfort’s point-of-view. As Mr. Winter succinctly described in his deposition, vetting and research were simply not a concern. As a result of the foregoing, it is clear that Defendants engaged in reckless disregard for the truth in producing the subject film.”
The argument contains echoes of what’s generating tremendous concern across the entertainment landscape. Take the “Catch-22” articulated by the MPAA and Netflix in an amicus brief in the de Havilland case.
“[A]ny docudrama that purports to show its subjects realistically would be insufficiently transformative and therefore violate the right of publicity,” stated the MPAA brief. “At the same time, under the court’s analysis, any docudrama that is sufficiently transformative to avoid right of publicity liability will be sufficiently knowingly false to be exposed to false light liability. If affirmed, the result would be that almost all docudramas and other fictionalized works based on actual events and real people, whether depicted as realistically as possible or as highly fictionalized, will lose First Amendment protection, thus depriving the public of these historically and culturally important works.”
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