Contributing Author: Bryan Sullivan
We have all become numb to the phrase “based on a true story” that we see at the beginning of our favorite TV shows, especially when those like “Inventing Anna” turn it into an opening gimmick. But what does “based on a true story” mean and how true must producers and writers be? Do the creators have the licenses to bend and stretch the truth to conform to their plots?
Last year, Netflix NFLX was sued twice for its alleged defamation of individuals mentioned in two of its series, “The Queen’s Gambit” and “Inventing Anna”.
On September 16, 2021, widely renounced chess player Nona Gaprindashvili filed a lawsuit against Netflix for false privacy violation and defamation of her name in their original one-season hit “The Queen’s Gambit,” based on the novel by Walter Tevis. . “The Queen’s Gambit” follows a fictional orphan, Beth Harmon, on her challenging journey to become an international chess champion. In the episode at the center of the lawsuit, Gaprindashvili is mentioned by a commentator during Harmon’s victory over a male opponent. “The only unusual thing about her, actually, is her sex. And this too is not unique in Russia. There is Nona Gaprindashvili, but she is the women’s world champion and has never faced men. ”This episode took place in 1968, when the real Nona Gaprindashvili competed in over 59 games with male opponents including world champions Boris Spassky , Viswanathan Anand and Mikhail Tal. Based on her complaint, it appears that Nona felt that the show belittled her achievements in the script and played a “sexist and demeaning” narrative. Additionally, Nona claimed that describing her as Russian when in reality was Georgian, rejected a culture that suffered for years under Russian rule.
It is difficult to imagine that chess experts Garry Kasparov and Bruce Pandolfini, who were hired as consultants during the creation of the television adaptation, would have missed the inaccuracies identified by Gaprindashvili. Is it possible that Netflix used the false impersonation to improve its storyline, implying that Harmon could accomplish things that Gaprindashvili couldn’t?
This case is not an isolated one. In August 2022, another libel suit was filed against the streaming platform for its original series “Inventing Anna”. The drama miniseries was based on the life of socialite wannabe Anna Sorokin, who was later convicted of fraud and other crimes as she tried to gain access to the top of society. The show allegedly portrayed plaintiff Rachel DeLoache Williams as a “greedy, snobbish, disloyal, dishonest, cowardly, manipulative, and opportunistic person,” while utilizing real-life identifying details such as the name, neighborhood, employer and alma mater of Williams. According to the lawsuit, Netflix’s inaccurate portrayal of Williams subjected her to online abuse and negative interactions due to her character’s misrepresentation. She further mentions that her character was the only one “in the series who was given the full name of a real person,” adding that she would respect the show if her identity was hidden.
Under the law, both Williams’ and Gaprindashvili’s arguments have legal support. Several courts have held that an action for defamation resulting from the representation of a fictional character is punishable, the description of the fictional character must be so similar to the real person that a third party, knowing the real person, would have no difficulty in connecting the two. However, superficial similarities are insufficient as well as a common name. More recently, this exact question has been raised about a character in the movie “Wolf of Wall Street” starring Leonardo DiCaprio and directed by Martin Scorsese titled Greene v Paramount Pictures Corp., 138 F.Supp.3d 226 (2015). The Green The court dismissed the actor’s claims on the grounds that no reasonable viewer would have believed the film’s character to be the actor because, among other reasons, there were several differences and the character was a composite of three different people, which i filmmakers reviewed the film to make sure it didn’t defame anyone and that the film included a disclaimer.
Even if a plaintiff can prove that there are substantial similarities, if the plaintiff is considered a public person, then the plaintiff will have to prove that the defendant acted with genuine malice. This means that the accused acted with the knowledge that the representation was false or with reckless contempt for whether it was false or not. This raises the question of whether Gaprindashvili or Williams are public persons. Gaprindashvili is probably given her stature in the world of chess, but Williams is a more difficult subject because the only reason she is known is due to the press on the Sorokin case. However, to get punitive compensation, Williams will still have to prove that Netflix acted with genuine malice.
Netflix’s counter to these arguments has been based on their “fictional” or “dramatized” approach. Considering that neither show is classified as a documentary or a reality series, it appears that Netflix never completely led its audience to believe that the television shows were describing real events that happened. Indeed, the introductory titles of each episode of “Inventing Anna” humorously revealed: “The whole story is completely true, except the parts that are totally made up.” This fiction also goes for real mischief, but, as can be seen from the Wolf of Wall Street case, the courts look at what the film’s producers did to make sure no one’s reputation rights were violated. So, the problem here is what actions did Netflix take so that they could show that they didn’t act knowing the story’s untruth or that they were not reckless?
Ultimately, Netflix was trying to give viewers what they wanted: drama. And, when a film or television series is based on real events, the drama often requires a creative reinterpretation of real events. Shonda Rhimes, the creator and executive producer of “Inventing Anna”, described their intention of wanting to “intentionally be fictionalizing moments instead of accidentally fictionalizing them.” That said, Netflix attributes its inaccuracies to tasteful plots rather than deception, which both plaintiffs pointed out.
With the rise of true crime and historical drama, producers navigate unstable territory where they manage to find the balance of telling a compelling story without overstepping the line to vilify real-life people. This requires diligence and creativity, as was found in the “Wolf of Wall Street” case, in which the producers engaged in verification efforts and created a character from a compound of three people. We’ll see if Netflix can do the same show.
Bryan Sullivan, Partner of Early Sullivan Wright Gizer & McRae, advises and represents his clients as a legal strategist in all of their businesses. He has significant experience on the litigation and appeals side of the practice, as well as with entertainment and intellectual property contracts, investment and financing agreements and corporate structure documents on the dealmaking side.