Hollywood Docket: James Woods' Twitter Defamation Win Upheld by Appeals Court

A roundup of entertainment legal news also involving Missy Elliott, Fiji Water, Odell Beckham Jr., Showtime and 'Jurassic World.'
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James Woods has again been vindicated by his use of a question mark, as the 6th Circuit Court of Appeals has upheld his victory in a tweet-sparked defamation lawsuit.

Portia Boulger in March 2017 sued Woods for defamation and invasion of privacy after the actor shared on Twitter a photo of her next to one of a woman wearing a Trump T-shirt giving a Nazi salute and wrote “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” (After it became clear the two women pictured were not the same person, Woods tweeted a follow-up message to that effect. After Boulger's lawyer sent the actor's lawyer a letter, Woods deleted the original tweet and posted three new messages clarifying the situation.)

An Ohio federal judge in January 2018 granted Woods' motion for judgment on the pleadings, finding that his question wasn't an actionable statement of fact. Boulger appealed and on Feb. 27 the 6th Circuit sided with Woods.

The court analyzed whether Woods' tweet constituted a false statement of fact by utilizing Ohio's four-pronged, totality-of-the-circumstances test. It found: It is "nearly impossible" to determine whether the message had a precise meaning, that a rule that all questions can't be verified is inappropriate, that the general context of Woods' tweets involved "sarcasm, exaggeration, and hyperbole" and that the broader context of Twitter can be used to disseminate both facts and opinion and therefore is neutral.

"Here, the factors do not definitively tip the scale in either direction," writes Chief Judge R. Guy Cole Jr.

So, the panel turned to Ohio's innocent construction rule.

"Here, the tweet at issue is reasonably susceptible to both a defamatory meaning — that Woods was asserting Boulger was the woman giving the Nazi salute — and an innocent meaning — that Woods was merely asking his followers a question," writes Cole. "Because Woods’s tweet could reasonably be read to have an innocent meaning, under the innocent construction rule the tweet, as a matter of law, is not actionable."

Circuit Judge John Nalbandian wrote an opinion concurring in part, suggesting that the panel ultimately reached the correct decision but shouldn't have applied the four-pronged test to arrive at that conclusion.

"Unlike its federal counterpart, Ohio’s constitution provides absolute immunity from liability for expressions of opinion," writes Nalbandian, explaining that the four-pronged test is supposed to determine whether a statement is a fact or an opinion. "The hitch, of course, is that our case is not about whether the tweet was a statement of fact or opinion — it’s about whether the tweet was a statement at all."
 
It's the second prong that Nalbandian finds most awkward here. It addresses whether a statement is verifiable, or "objectively capable of proof or disproof."
 
"Asking whether a question is verifiable is like asking how tall an elephant weighs," writes Nalbandian. "A question is an inquiry, not an assertion, so it’s neither verifiable nor unverifiable.... Rather than try to awkwardly work around this issue, I would resolve this case in a much simpler way by asking whether a reasonable reader would interpret the language as a genuine question."
 
Read the full opinion here.

In other entertainment news:

— Warner Bros. is asking the court to compel arbitration in a lawsuit from a former DramaFever exec who has accused the company of racial bias. Chung Chang on Wednesday sued the studio, claiming he was laid off because he's Asian American. Warners in 2016 acquired DramaFever, a streaming service that offers Korean and other East Asian media to western audiences, and renamed it Warner Digital Labs. Chang claims the company recently terminated all of the streamer's Asian-American execs. He also claims Warners shuttered DramaFever and Machinima to cover up widespread copyright infringement. Warners on Friday filed a motion to compel arbitration, arguing Chang's employment agreement contained an arbitration clause — and that an active arbitration regarding some of his claims was already underway when he filed his public complaint. The company also "categorically denies" that any of the terminations were the result of discrimination.

— Missy Elliott is being sued by a model whose face appears on a shirt the rapper is wearing in a promotional photo for 2016 single "Pep Rally." Jodi Pliszka claims the rapper and Atlantic records used her image for advertising or trade without her written consent in violation of New York law. Reps for Elliott did not respond to a request for comment. 

— Fiji Water is countersuing the model who claims the company used her likeness without permission in a marketing campaign featuring cardboard cutouts of the Golden Globes photo that caused her to go viral. Fiji in February filed a cross-complaint against Kelly Steinbach, claiming she backed out of a $90,000 deal to serve as a brand ambassador and is attempting to "extort close to half a million dollars" from the company. Fiji claims Steinbach not only consented to the use of her likeness for the cutouts, but liked them so much she had a photo taken next to one and posted it on Instagram. The company is suing for breach of contract, or alternatively false promise, and is seeking compensatory damages. (Read the complaint here.)

— Filmmakers of the Emmy-nominated documentary What Haunts Us have settled a defamation lawsuit sparked by a 1979 yearbook photo shown in the film. A Florida teacher in September sued Starz, claiming his picture was used in promotional material for the documentary about sexual abuse at his alma mater and falsely implied he was either involved or knew about the abuse and failed to protect his classmates. A stipulation of dismissal pursuant to the parties' confidential settlement was filed Feb. 26.

Jurassic World: Fallen Kingdom producers have reached a settlement in a trademark infringement dispute over the promotional campaign to "Save the Dinos" — but the fight might not quite be extinct. In October, Frederick Zaccheo of The Dinosaur Project sued, claiming filmmakers breached their licensing deal with him by using the slogan on merchandise. The parties in January notified the court that they'd reached a deal, but Zaccheo's lawyer on Feb 21 asked for an extension of the window during which the parties can reopen the matter because he still hadn't received a draft of the settlement agreement. That deadline is now March 21.

— Odell Beckham Jr. has settled a lawsuit with the paparazzi agency that he claimed tried to extort him over an Instagram post. Beckham in February 2018 sued Splash News and Picture Agency after he says it demanded he pay them $40,000 to avoid being sued for posting a photo of himself that was taken by one of the company's photographers. The court on Feb. 6 granted a joint motion for dismissal with prejudice. 

— Michael Jackson's estate has ended a legal fight over the documentary Michael: The Last Photo Shoots. Noval Williams Films in 2014 sued the executors of Jackson's estate, seeking a declaration that the documentary doesn't infringe the copyright in photos and video of the late King of Pop. The court in January 2018 denied dueling motions for summary judgment, moving the case toward trial. The court on Jan. 23 granted a joint motion for dismissal with prejudice.

— Showtime has resolved a dispute with a body double on The Affair who sued for retaliation, claiming she was fired after complaining about sexual harassment. Ashlynn Alexander in July 2017 sued the network, saying she was sexually harassed by her supervisor who listed her on a call sheet as "Alison Sexytime Double." In a motion to either dismiss the complaint or compel arbitration, Showtime argued the phrase was merely an instruction for the hair and makeup team to ensure she was properly prepped for a sex scene. The parties filed a joint stipulation of dismissal Jan. 28.

— The 9th Circuit has upheld a November 2017 decision finding that California's State Insurance Compensation Fund has no duty to defend Cybernet from certain kinds of lawsuits. Cybernet, which produces adult films and runs the fetish website Kink.com, was sued by multiple actors who say they contracted HIV while performing. The appellate panel found that exclusions in the coverage for claims that could be remedied by workers' compensation or for "damages or bodily injury intentionally cause or aggravated by" the company mean State Fund had no duty to defend Cybernet. (Read the decision here.)