I recently attended the USC-BHBA Institute on Entertainment Law and Business, where a panel discussed some of the latest developments in defamation law. A number of interesting cases were discussed, including a lawsuit brought against Netflix regarding its hit series The Queen's Gambit, based on a novel with the same title.
For those not familiar with the series, it is a fictional series in which a character named Beth Harmon becomes a chess champion. She defeats a male competitor at a tournament in Moscow. An announcer expounds that her adversary underestimated her. "The only unusual thing about her, really, is her sex. And even that's not unique in Russia. There's Nona Gaprindashvili, but she's the female world champion and has never faced men."
Now Nona Gaprindashvili is the name of a real chess champion from the country of Georgia. She won the Women's Soviet Union Championship at the age of 14. In 1961, she became female world champion at the age of 20. She is a national hero and was the first woman to achieve the title of international chess grandmaster. She held the women's world champion title for 16 years and often played in open tournaments and faced many men, including world champions such as Boris Spassky. Indeed, in the complaint there is a picture of her simultaneously playing 28 men in an exhibition. She frequently defeated male chess champions.
The complaint stated:
"Netflix brazenly and deliberately lied about Gaprindashvili's achievements for the cheap and cynical purpose of 'heightening the drama' by making it appear that its fictional hero had managed to do what no other woman, including Gaprindashvili, had done. Thus, in a story that was supposed to inspire women by showing a young woman competing with men at the highest levels of world chess, Netflix humiliated the one real woman trailblazer who had actually faced and defeated men on the world stage in the same era."
Defamation cases rarely arise in fictional works. That is simply because fictional characters are not real people with reputations that can be harmed. But what happens when a largely fictional story references some real-life individuals? Here there is the potential to harm someone's reputation.
Defamation is communication that harms the reputation of another, so as to lower him in the opinion of the community or to deter third persons from associating or dealing with him. For example, those communications that expose another to hatred, ridicule or contempt, or reflect unfavorably upon one's personal morality or integrity, are defamatory. One who is defamed may suffer embarrassment and humiliation, as well as economic damages, such as the loss of a job or the ability to earn a living.
Netflix argued that no reasonable viewer would have understood the remarks to convey a statement of fact because the series is a fictional work. However, the court differed: "Netflix does not cite, and the court is not aware, of any cases precluding defamation claims for the portrayal of real persons in otherwise fictional works. On the contrary, the fact that the series was a fictional work does not insulate Netflix from liability for defamation if all the elements of defamation are otherwise present."
The plaintiff was seeking damages of at least $5 million. The court refused to grant Netflix's motion to dismiss the case, stating: "...the court is not aware of any cases precluding defamation claims for the portrayal of real persons in otherwise fictional works."
The case was then settled by the parties for an undisclosed amount. The lesson from the case is that producers can avoid liability by not naming real people in fictional accounts, or by not making any defamatory remarks about them.
Downloads:
Complaint.
Dismissal.
I recently attended the USC-BHBA Institute on Entertainment Law and Business, where a panel discussed some of the latest developments in defamation law. A number of interesting cases were discussed, including a lawsuit brought against Netflix regarding its hit series The Queen's Gambit, based on a novel with the same title.
For those not familiar with the series, it is a fictional series in which a character named Beth Harmon becomes a chess champion. She defeats a male competitor at a tournament in Moscow. An announcer expounds that her adversary underestimated her. "The only unusual thing about her, really, is her sex. And even that's not unique in Russia. There's Nona Gaprindashvili, but she's the female world champion and has never faced men."
Now Nona Gaprindashvili is the name of a real chess champion from the country of Georgia. She won the Women's Soviet Union Championship at the age of 14. In 1961, she became female world champion at the age of 20. She is a national hero and was the first woman to achieve the title of international chess grandmaster. She held the women's world champion title for 16 years and often played in open tournaments and faced many men, including world champions such as Boris Spassky. Indeed, in the complaint there is a picture of her simultaneously playing 28 men in an exhibition. She frequently defeated male chess champions.
The complaint stated:
"Netflix brazenly and deliberately lied about Gaprindashvili's achievements for the cheap and cynical purpose of 'heightening the drama' by making it appear that its fictional hero had managed to do what no other woman, including Gaprindashvili, had done. Thus, in a story that was supposed to inspire women by showing a young woman competing with men at the highest levels of world chess, Netflix humiliated the one real woman trailblazer who had actually faced and defeated men on the world stage in the same era."
Defamation cases rarely arise in fictional works. That is simply because fictional characters are not real people with reputations that can be harmed. But what happens when a largely fictional story references some real-life individuals? Here there is the potential to harm someone's reputation.
Defamation is communication that harms the reputation of another, so as to lower him in the opinion of the community or to deter third persons from associating or dealing with him. For example, those communications that expose another to hatred, ridicule or contempt, or reflect unfavorably upon one's personal morality or integrity, are defamatory. One who is defamed may suffer embarrassment and humiliation, as well as economic damages, such as the loss of a job or the ability to earn a living.
Netflix argued that no reasonable viewer would have understood the remarks to convey a statement of fact because the series is a fictional work. However, the court differed: "Netflix does not cite, and the court is not aware, of any cases precluding defamation claims for the portrayal of real persons in otherwise fictional works. On the contrary, the fact that the series was a fictional work does not insulate Netflix from liability for defamation if all the elements of defamation are otherwise present."
The plaintiff was seeking damages of at least $5 million. The court refused to grant Netflix's motion to dismiss the case, stating: "...the court is not aware of any cases precluding defamation claims for the portrayal of real persons in otherwise fictional works."
The case was then settled by the parties for an undisclosed amount. The lesson from the case is that producers can avoid liability by not naming real people in fictional accounts, or by not making any defamatory remarks about them.
Downloads:
Complaint.
Dismissal.
