Last month, HBO released its new drama series Winning Time: The Rise of the Lakers Dynasty – based on the book Showtime: Magic, Kareem, Riley and the Los Angeles Lakers Dynasty of the 1980s by Jeff Pearlman. To say that Jerry West, the former head coach and GM of the Los Angeles Lakers dislikes the way he is portrayed in the HBO series Winning Time is an understatement. West calls his portrayal “false and defamatory” and he has publicly called for a retraction and an apology. In a letter to HBO, West’s lawyer claims that Winning Time falsely and cruelly portrays West as an out-of-control, intoxicated, rage-aholic. West’s lawyer claims that the producers have committed the tort of false light invasion of privacy by creating a false impression about Mr. West that is highly offensive and injurious to his reputation and have also defamed Mr. West by attributing acts of rage to him that he never committed.
In De Havilland v. FX Networks, LLC, Olivia De Havilland advanced a false light claim over her portrayal in the docudrama “Feud: Bette and Joan”. A false light claim is a type of invasion of privacy, based on publicity that places a person in the public eye in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the aggrieved person would be placed. A false light claim is equivalent to a libel claim, and its requirements are the same as a libel claim, including proof of malice. So, in order for West to prevail on both his false light claim and his defamation claim, he would have to demonstrate that his portrayal in Winning Time were (1) assertions of fact, (2) actually false or create a false impression about him, (3) are highly offensive to a reasonable person or defamatory, and (4) made with actual malice. Actual malice would be established by showing that HBO deliberately portrayed West in the hope of insinuating a defamatory import to the viewer, or that HBO knew or acted in reckless disregard as to whether his portrayal would be interpreted by the average viewer as a defamatory statement of fact.
One of the portrayals West claims to be defamatory was HBO’s depictions of his reaction to the drafting of Magic Johnson. The series portrays West in the following scenes regarding Magic Johnson – one is West golfing with Jerry Buss, Bill Shannan and Frank Mariani while discussing Magic Johnson and West is shown kicking his golf ball, having a profanity laden outburst and storming off; another shows West yelling and breaking a golf club over his knee; and a third scene, taking place after Magic Johnson was drafted, West is portrayed throwing his MVP trophy through his office window in anger.
Before the court even gets to the question of whether West’s portrayal is defamatory, the court would first have to determine whether his portrayal was substantially true and if not, whether scenes are statements of fact or the dramatized opinion of the producer.
Since truth is a defense to a defamation claim, HBO would likely argue that West’s portrayal was substantially true. In deciding whether a statement is substantially true, courts typically compare the language or portrayal with the actual truth to determine whether the truth would have a different effect on the mind of the average reader/viewer. Apparently, West wasn’t fully convinced that Magic could thrive as a point guard and West preferred Sidney Moncrief. Apparently, West went as far as to try to convince Jack Kent Cooke, the outgoing owner of the Lakers, not to draft Johnson. Also, apparently in West’s autobiography, “My Charmed, Tormented Life”, he discussed purposefully breaking golf clubs and Pat Riley witnessing him throwing his clubs over the fence of the Bel Air Country Club. Can the producers take these independent facts, dramatize and combine them, and still have this portrayal be substantially true?
If a statement/portrayal is not truthful, then the primary consideration is whether such an average, reasonable viewer, watching the scenes in their original context, would conclude that they are statements of fact and not the dramatized opinion of the producer. According to the opinion of the De Havilland court, that may be a challenge to establish. There the court said that “[v]iewers are generally familiar with dramatized, fact-based movies and miniseries in which scenes, conversations, and even characters are fictionalized and imagined” and the fact that a program “is a so-called docudrama or historical fiction . . . might indicate that the quotations should not be interpreted as the actual statements of the speaker to whom they are attributed”. Citing the Ninth Circuit case of Partington v. Bugliosi, the court concluded that; most viewers of docudramas “are aware by now that parts of such programs are more fiction than fact.”
It appears that the courts in New York may not go as far as the California Court of Appeals did in De Havilland. In Fairstein v. Netflix, the United States District Court for the Southern District of New York declined to conclude that viewers of When They See Us would assume the program is “more fiction than fact” but rather that the dialogue in the dramatization “is not a verbatim recounting of the real-life participants and is intended to capture the essence of their words and deeds.”
According to the Fairstein court, the key to determining the difference between non-actionable statements of opinion and actionable statements of facts (or an opinion that implies that it is based upon facts which justify the opinion) is the implication that the statement is based on undisclosed facts known to the defendants. The distinction between fact and opinion is an issue of law for the courts, and the determination will be based on the court’s assessment of how the statement would be understood by the average person exposed to the statement in its full context.
Is West’s portrayal the unactionable, dramatized opinion of the producers, or is his portrayal based on, or does it appear to the average, reasonable viewer to be based on undisclosed facts known to the producers? While that will be for the court to determine, a factor to consider is a scene in Winning Time where Jerry Buss, speaking directly to the viewers, says “Jerry West, Head Coach of the Lakers, considered a true gentleman of the sport to everyone who does not know him.” West’s lawyers argue that the scene implies that Winning Time depicts the “real” West. However, there is a disclaimer at the beginning of Winning Time. Usually, disclaimers give the producer some room to claim that a work or parts of a work are dramatized opinions. However, as the United States District Court for the Central District of California pointed out in Gaprindashvili v. Netflix (the Queens Gambit defamation suit), the presence of a disclaimer is a “factor in the analysis, albeit not a dispositive one.”