Libel by Fiction: Greene v. Paramount Pictures Corporation

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.