In a victory for all authors of fiction, a screenwriter of the film “What Maisie Knew” has successfully defended a lawsuit that sought to hold him liable for defamation based on the portrayal of a character drawn from an 1897 Henry James novel.
The case highlights the unusual legal questions raised by defamation claims arising from fictional works. In “libel in fiction” cases, the real-life plaintiff simultaneously claims that he or she is actually portrayed in a fictional work, but also that the portrayal contains some false characteristics or events that are defamatory. Such counterintuitive claims pose a special risk of chilling artistic expression, by discouraging writers from addressing subjects that overlap with their own personal experience. The January 20, 2015 ruling, which granted writer Carroll Cartwright’s SLAPP motion and dismissed plaintiff Ronee Blakley’s libel in fiction lawsuit, reinforces the strict First Amendment barriers to such actions. Blakley v. Cartwright, Los Angeles County Superior Court No. BC543217 (Hon. Rafael A. Ongkeko, presiding).
The key legal issue in most libel in fiction cases is whether a reasonable reader or viewer would believe that the allegedly defamatory statements are actually about the plaintiff. This constitutionally based “of and concerning” standard requires that “a reasonable person … would understand that the fictional character … was, in actual fact, the plaintiff acting as described.” Tamkin v. CBS Broadcasting, Inc., 193 Cal. App. 4th 133, 146 (2011).
Defamation cases involving fictional works are nothing new, and have involved many classic works, including the novel and film “Anatomy of a Murder” (Wheeler v. Dell Publishing Co., 300 F.2d 372 (7th Cir. 1962)); and the novel and movie “From Here to Eternity” (New York ex rel. Maggio v. Charles Scribner’s Sons, 205 Misc. 818, 821 (New York City Magis. Ct. 1954)), among others.
And there have been successful libel plaintiffs in cases involving fictional works, although the cases tend to involve circumstances where the plaintiff and the purportedly fictional character shared highly unusual characteristics that were readily identifiable. For example, in Fetler v. Houghton Mifflin Company, 364 F.2d 650 (2d Cir. 1966), the plaintiff’s brother wrote a novel based on their unique family featuring “a minister father and thirteen children in which the third, fourth and eighth are girls and the eldest a son with great responsibility, who toured Europe in a bus in the 1930s giving family concerts.” And in Bindrim v. Mitchell, 92 Cal. App. 3d 61 (1979), the plaintiff and main character were both therapists in California who conducted nude therapy sessions, and the author had based passages on actual transcripts from sessions that she attended with the plaintiff pursuant to a non-disclosure agreement.
In more recent years, however, a series of appellate decisions in California have rejected defamation claims arising from the portrayal of fictional characters in films and television shows. In Aguilar v. Universal City Studios, Inc., 174 Cal. App. 3d 384 (1985), the plaintiff had the same name (“Bertha”) as a character in the movie “Zoot Suit,” and she had participated in real-life events depicted in the film. InPolydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318 (1997), the screenwriter of the film “The Sandlot” knew the plaintiff; a character in the film had a similar background and virtually identical name; and as a child, the plaintiff physically resembled the character “right down to [his] eyeglasses and the color and design of his shirt.” And in Tamkin, a writer for the TV show “CSI” used the plaintiffs’ real names and occupations for characters in a draft script, and characters in the episode that ultimately was broadcast had similar names and characteristics. Yet in each case, the courts found that the similarities were too generic or non-specific to establish that the fictional work actually depicted the plaintiff.
The Blakley v. Cartwright litigation arose from “What Maisie Knew,” a 2013 film starring Julianne Moore about a resilient six-year-old girl enmeshed in a bitter custody battle. Adapted from a 113-year-old Henry James novel, the film updated the story to take place in modern-day New York, but otherwise kept most of the novel’s key plot points and characters. Mr. Cartwright, the co-author of the film’s screenplay, had a child in 1988 with Ms. Blakley, an actress who was known for her roles in “Nashville” and “Nightmare on Elm Street,” and the pair had a long-running and acrimonious custody dispute.
Ms. Blakley sued Mr. Cartwright in April 2014, claiming that she was portrayed by the character of Maisie’s mother in the film, and falsely depicted as a bad parent. Among other things, Ms. Blakley alleged that the character’s name, “Susanna,” resembled her middle name, Sue; she and the character both wore red plaid shirts and had similar hair; they were both musicians; and some of the circumstances of the real-life and fictional custody disputes were alike. She also pointed to public statements that Mr. Cartwright made in connection with the film, in which he mentioned his personal experiences and daughter, and she presented declarations from several of her friends claiming that they believed the film was meant to portray her.
Mr. Cartwright’s SLAPP Motion pointed out, among other things, that the alleged similarities were too superficial or widely-shared to state an actionable claim, and that any similarities were outweighed by stark differences, from the film’s setting to its central plot point, in which Maisie’s mother and father both re-marry, only to see their new spouses become romantically involved with each other. (The plaintiff did not allege any such real-life events.) Mr. Cartwright also noted that Maisie’s father was a selfish and unsympathetic character, which undercut the notion that he intended to portray events from his own past. He also pointed out that courts have rejected the use of declarations to determine what a “reasonable viewer” would have believed; in this case, the declarants were plaintiff’s friends who claimed to have watched the film with her.
The Court agreed with Mr. Cartwright, and granted his special motion to strike Ms. Blakley’s complaint pursuant to California’s SLAPP statute, which provides for the early dismissal of claims targeting free speech. In a 14-page ruling issued January 20, 2015, Judge Ongkeko concluded that the alleged similarities were “either tenuous or common, non-unique occurrences,” and that as a matter of law, the “statements and alleged similarities cannot reasonably be interpreted as referring to Blakley.” The Court also found that the plaintiff’s own evidence revealed “areas in which her life diverges from the plot” of the film, and that, read in context, Mr. Cartwright’s public statements were a description of his creative process and not an admission that the character of Maisie’s mother was based on the plaintiff.
Mr. Cartwright’s victory is particularly significant because there were indications that the plaintiff’s legal team (which initially included three sets of lawyers) viewed the case as an opportunity to expand the scope of liability for libel in fiction claims. Her Complaint quoted from a book written by one of her lawyers, Rod Smolla, in arguing that authors should be held liable when they take a “middle ground” approach of “neither adhering perfectly to the real person’s attributes and behavior nor engaging in elaborate disguise.” Fortunately, the First Amendment provides broader protections, as the Court’s decision makes clear.