3:10pm PT by Eriq Gardner
Judge Lets Former N.Y. Times Columnist Sue Over Movie Based on Ex-Wife's New Yorker Story
Randy Cohen, who wrote The New York Times' "Ethicist" column for many years, has gotten the green light to move ahead in his slander lawsuit targeting the movie trailer for Learning to Drive.
The 2015 movie, starring Patricia Clarkson and Ben Kingsley, is based on a story in The New Yorker by Katha Pollitt, Cohen's ex-wife.
Cohen is unhappy with two scenes. In one, the main character — allegedly a proxy for Katha Pollit — tells her daughter, "Instead of buying a motorcycle, Daddy decided to give adultery a spin." In the second, after Cohen is allegedly referenced, the main character states, "Where does he find these skanks?"
"The film, as viewed in its trailer, effectively merges the two men depicted in the article, plaintiff and the author's lover, into one person, identified as the former husband, and attributes all the lover's negative characteristics to the former husband," writes New York Supreme Court Justice Lucy Bilings. "Therefore plaintiff sufficiently pleads that the defamatory statements that he is an adulterer or a philanderer and is a womanizer keeping company with sleazy and sexually promiscuous women were of and concerning him."
On a motion to dismiss, Broad Green Pictures, the financiers behind Learning to Drive, contended that no reasonable viewer would make a connection between the main character and Pollitt, or the main character's former husband and Cohen.
Billings doesn't agree.
"Although defendants point to factual differences between the accounts given in the film versus in the article, these differences are irrelevant in light of the film's specific identification of the author's former husband as the adulterer and womanizer," she writes. "The trailer's attribution of adultery and womanizing to the author's former husband makes it reasonably susceptible of interpretation by persons who know plaintiff, the author's former-husband, that he is an adulterer and womanizer. Persons who know plaintiff are reasonably likely to know that he and Katha Pollitt formerly were married and have a daughter and thus reasonably likely to identify him on these bases if they view the trailer without having read the article, especially when the trailer announces that it is based on a true story."
Cohen scores more points.
He once was not only a high-profile columnist for The New York Times, but Cohen also wrote for David Letterman's late-night show. Nevertheless, the judge isn't ready to conclude that he is a public figure who must plead malice to support a defamation claim. Billings writes that a single document presented, an unsworn biography of Cohen, is inadmissable and "falls far short of demonstrating plaintiff's actions to achieve notoriety."
At least at this juncture, Billings accepts Cohen's allegations of malice in any regard.
"Here, the complaint alleges that defendants acquired the rights to produce a film based on the article, raising the inference that defendants were aware of the article's contents, which their film and trailer themselves admit are true, and thus knew that the film and trailer departed from the truth," the judge writes. "Therefore the film's portrayal of the adulterer and womanizer as the author's husband, which could be only her one husband, plaintiff, instead of as a lover with whom she was romantically involved, demonstrates defendants' reckless disregard of the truth that a public figure must show to establish defamation."
Finally, the judge addresses the issue of public concern because public figure or not, Cohen still would have to plead the filmmakers' gross irresponsibility in gathering information if the subject of the movie trailer was of public concern. In the past, courts tend to accept stuff that appears in popular entertainment as being such, but not in this case, even if the subject was adapted from an article in one of the most highly esteemed magazines.
"The film trailer does not portray a subject of public concern, as the trailer presents only portions of a film about the main character's personal life, her driving lessons in which she occasionally describes her former husband, without touching on any discernable issues of public interest," states the opinion. "Even if her personal life did raise issues of public concern, plaintiff pleads that defendants were at least grossly irresponsible because, as discussed above, the film is based on the article, which indisputably distinguishes plaintiff from the author's lover."