By Richard A. Altman, Esq.
Whether the Center for Art Law hosts its next dinner and a movie evening dedicated to the new Martin Scorsese film “The Wolf of Wall Street” remains to be seen. However, a suit arising from this film, recently filed in the Eastern District of New York, illuminates a curious area of defamation law known as libel by fiction. It arises when someone claims that a fictional work which portrays a character in a negative light, usually as a criminal or an unchaste woman, is based upon personality or physical characteristics or qualities which the plaintiff possesses, such that people who know the plaintiff will think that he or she is the basis for the person portrayed. It is rarely successful, but if a plaintiff can show that people reasonably assume that the fictional character is based upon him or her, and that the portrayal is sufficiently negative, it is possible to maintain a defamation claim.
What makes the claim so odd is that it is counter-intuitive and even illogical, because “a plaintiff claims that something that is fictional is not factually accurate.”1 In New York, every libel plaintiff must show that the complained-of portrayal or statement is “of and concerning” him. This is not an issue in the usual situation, where a plaintiff is actually named in a publication and there is no doubt regarding who he or she is. But if the plaintiff is only verbally (or visually) described in the fictional work as someone else, it is then the part of the plaintiff’s burden to show that persons who know the plaintiff will necessarily recognize him in the fictional portrayal. The burden is a heavy one, but, as will be shown, the plaintiff in the new case may have met that burden, and could survive a motion to dismiss. And perversely, his less-than-spotless reputation may make him more, rather than less, likely to succeed.
In Greene v. Paramount Pictures Corporation et al., 14-cv-1044 (E.D.N.Y, Feb. 18, 2014), the plaintiff, Andrew Greene, alleges that he is a lawyer, an inactive member of the California bar, and was formerly the head of the Corporate Finance Department of Stratton Oakmont, Inc., from 1993 until his resignation in 1996. Stratton Oakmont was a large over-the-counter securities brokerage firm in the 1990’s, and its head, Jordan Belfort, was indicted in 1998 for securities fraud and money laundering, which led to the firm’s demise. Mr. Greene further alleges that the recently released Martin Scorsese film, “Wolf of Wall Street,” contains a fictional character named Nicky “Rugrat” Koskoff, who is “portrayed as a criminal, drug user, degenerate, depraved, and/or devoid of any morality or ethics,”2 and that the character of Koskoff is based upon him. In the film, Koskoff is played by Leonardo DiCaprio.
Mr. Greene further alleges that in 2007, Belfort wrote a memoir about the firm with the same name as the film, that the book refers to him (Greene) by his correct name, and that the film is based upon the book. He references similarities between himself and the portrayal of Koskoff, including that they both were close friends with Belfort, that they both went to law school, that they both wore toupées, that the film mocks Koskoff’s toupée, calling it a “piece of shit hairpiece,”3 and that they both had significant leadership roles at Stratton Oakmont.
However, what the complaint omits is that Mr. Greene was one of four former officers of that firm who were collectively fined $10 million in damages by a National Association of Securities Dealers arbitration panel, allegedly for defrauding an investor. Apparently Mr. Greene’s share was $1.5 million.4 It is not known whether the arbitration was ultimately enforced, or whether the fines were paid, but the findings of the NASD panel, and the assessment of a substantial punitive damage fine, would seem to affect Mr. Greene’s reputation negatively. Since, by definition, a libel plaintiff claims damage to a good reputation, the likelihood of ultimate recovery here would thus appear slim. But libel-by-fiction cases have their own rules.
Mr. Greene sets forth five causes of action based upon these facts. It seems however, that only one has a chance of success.
The first and second causes of action are based upon New York Civil Rights Law §§ 50 and 51, which provide a cause of action for an injunction and damages against anyone who “uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person.” But this statute is not a general protection of the right of privacy; there is no such right in New York other than that provided by libel laws.5 A claim under these statutes requires the unconsented-to use of the actual name or likeness of the plaintiff, usually in a photograph. Portrayal of the plaintiff in fiction under a different name is not sufficient.6 Here, plaintiff does not allege that his actual name or likeness appears anywhere in the film. Thus, since neither plaintiff’s actual name nor likeness were used, it would seem that he has no claim under Civil Rights Law §§ 50 and 51 for either an injunction or damages.
The third cause of action alleges that the defendants “have consciously and deliberately disregarded and violated Plaintiff’s common law propriety [sic] right to exclusive control of the commercial use of his image, likeness, and characterization,”7 and he seeks an injunction and damages. But as just stated, there is no such common law right in New York. The right to control one’s image, likeness and characterization is purely statutory. Hence the third cause of action is likely to be dismissed.
The fourth and fifth causes of action are in the nature of claims for libel per se. They allege that the statements and portrayal in the film show him “as a criminal and drug user with misogynistic tendencies.”8 The fourth alleges that the statements and portrayals were made “with malice or [that defendants] acted with reckless disregard as to the truth or falsity of the statements.”9 The fifth alleges that the statements were made “negligently as to the truth or falsity of the statements.”10 Nowhere in the complaint are the actual statements in the film set out verbatim. There is only one exception, where a character in the film named Donnie Azoff is alleged to say, “Fucking Rugrat that wig-wearing faggot I can’t believe that fucking guy. I want to kill him.” Belfort’s character then says, “Swear to God, I want to choke him to death. Irresponsible little prick.”11
The failure to set out verbatim in a defamation complaint the exact words complained of is fatal to a claim in New York State courts.12 However, it is not necessarily fatal in federal courts, because pleadings there are governed by F.R.Civ.P. 8. “While the federal rules do not require the particularized pleading requirements set forth in New York’s C.P.L.R. section 3016, Rule 8 still requires that each pleading be specific enough to afford defendant sufficient notice of the communications complained of to enable him to defend himself.”13 Thus plaintiff still must point to specific language or imagery in the film which states facts to support his claim that he is portrayed as a criminal. He has not done so. Obviously the film is far more than just a portrayal of Mr. Greene, and it would seem necessary to identify those portions of the film specifically alleged to be defamatory.
In any event, the only words actually quoted in the complaint are not defamatory. They are obviously not statements of fact about “Rugrat,” capable of being true or false, but are merely opinions in the form of invective and abusive language, which is not actionable. Only statements of fact can be libelous, and calling someone a “wig-wearing faggot” and an “irresponsible little prick,” while certainly nasty and insulting, would not be considered libelous.14
Thus, even leaving aside these significant and possibly fatal omissions, we are left only with a claim for libel by fiction. This is where it gets interesting. As noted above, the claim is counter-intuitive, in that it is based on the assertion that a work of fiction is false. But it does exist: “In the fiction context, the plaintiff must also show that the viewer was totally convinced that the episode in all aspects as far as the plaintiff is concerned is not fiction at all.”15
In Batra v Wolf,16 the Court refused to dismiss a complaint against the television show “Law and Order,” brought by a lawyer who claimed that a character in an episode of the show was based on him, and portrayed him as corrupt. The episode was based on a true and widely reported event involving judicial corruption in Brooklyn, and a judge who served time in prison. The plaintiff, a lawyer named Ravi Batra, had been involved in judicial politics, but was never charged with any crime in connection with the event. He had however been linked to the corrupt judge in the press. The lawyer in the episode had the same first name, Ravi, and both the plaintiff and the fictional lawyer were of Indian descent. In the episode, the surname Batra was changed to Patel. The court said that the similarities were close enough to entitle the plaintiff to proceed, and did not dismiss the action:
In the context in which Floater was presented, extensive media coverage linking Batra to the Garson/Siminovsky scandal, there is a reasonable likelihood that the ordinary viewer, unacquainted with Batra personally, could understand Patel’s corruption to be the truth about Batra. While the accusations against Batra were for graft rather than for bribery, it cannot be said that this distinction is sufficiently “far-fetched” that Patel’s corruption could never be understood as describing actual facts.17
In Geisler v. Petrocelli,18 the plaintiff had appeared in a work of fiction under her real name, which allegedly portrayed her as participating in a fraud involving a tennis match, and in which she was “lured into untoward sexual conduct which is graphically portrayed.”19 The Court then said:
Rather, it is required that the reasonable reader must rationally suspect that the protagonist is in fact the plaintiff, notwithstanding the author’s and publisher’s assurances that the work is fictional. This points up the disturbing irony inherent in the scheme: the more virtuous the victim of the libel, the less likely it will be that she will be able to establish this essential confusion in the mind of the third party. Thus, the more deserving the plaintiff of recompense for the tarnishing of a spotless reputation, the less likely will be any actual recovery. Such a seeming contradiction is best resolved by the trier of fact since adjudication of the issue as a matter of law will seldom satisfy the expectation that legal holdings be consistent and logical. Id. at 639.
What makes Mr. Greene’s case unusual is that it is the opposite of Giesler. If a plaintiff with a spotless reputation is less likely to recover, is a plaintiff with a tarnished one more likely to recover? It seems no less illogical than a libel-by-fiction claim itself.20
Based on the case law and commentary, it appears that Mr. Greene can legitimately assert that he and “Rugrat” Koskoff are one and the same, at least as a threshold issue. Maybe the toupée is the clincher. Moreover, considering the dictum in Geisler, the fact that Mr. Greene’s reputation is not spotless ironically might make his likelihood of ultimate recovery greater than if the NASD had never penalized him and if the firm had never crashed and burned. But then, if that had not happened, there would have been no movie.
1 Batra v. Wolf, 2008 N.Y. Misc. LEXIS 1933 at *5 (Supreme Ct. N.Y.Co. Mar. 14, 2008).
2 Complaint, ¶ 30 at 6.
3 Id., ¶ 28 at 6.
4 See http://www.securitiesarbitration.com/news/1997/04/18/former-stratton-execs-fined-10m/ (accessed March 5, 2014).
5 Arrington v. New York Times Co., 55 N.Y.2d 433 (1982).
6 Allen v. Gordon, 86 App.Div.2d 514 (1st Dept.1982), aff’d 56 N.Y.2d 780 (1982).
7 Complaint, ¶ 55 at 10.
8 Id., ¶ 62 at 11.
9 Id., ¶ 60 at 11.
10 Id., ¶ 65 at 12.
11 Id., ¶ 29 at 6.
12 CPLR 3016(a); Buffolino v. Long Island Sav. Bank, FSB, 126 A.D.2d 508 (2d Dept.1987).
13 Gristede’s Foods, Inc. v. Poospatuck (Unkechauge) Nation, 2009 U.S. Dist. LEXIS 111675, 2009 WL 4547792, at *8-9 (E.D.N.Y. Dec. 1, 2009)(citations omitted).
14 Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986).
15 Batra, supra n. 1 at *5 (citing Welch v. Penguin Books USA, Inc., 1991 N.Y. Misc. LEXIS 225 (Sup.Ct.Kings Co.1991)(quotation marks omitted).
16 2008 N.Y. Misc. LEXIS 1933 (Supreme Ct. N.Y.Co. Mar. 14, 2008).
17 Batra, supra, n. 1 at *10.
18 616 F.2d 636 (2d Cir.1980).
19 616 F.33 at 638 (footnote omitted).
20 The subject of libel by fiction is explored in two recent law review articles: “When ‘Ripped from the Headlines’ Means ‘See You in Court’: Libel by Fiction and the Tort-Law Twist on a Controversial Defamation Concept,” 13 Texas Rev. Ent. & Sports L. 117 (2012) and “When Is Fiction Just Fiction? Applying Heightened Threshold Tests to Defamation in Fiction,” 76 Fordham L.Rev. 1853 (2007).
Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.