Liable for libel in fiction: Narrative filmmakers beware

By: Shaliz Sadig

Typically, the most common filmmakers concerned with potential defamation claims against their films are documentarians.  After all, documentaries are fact-based and intended to spread a message of truth, while narratives are fictional.

Narrative films, however, can be subject to defamation suits, especially when based on or inspired by actual people.  What happens when a narrative film seems to borrow too much from reality?  

Can a narrative filmmaker be liable for libel?  That’s an underlying question in the recent lawsuit filed by Ronee Sue Blakley against Carroll Cartwright, the co-writer of the 2012 film What Maisie Knew.

Background

Blakley is an established musician and Oscar-nominated actress (known for her role in Robert Altman’s Nashville).  She and Cartwright had a romantic relationship in the mid-1980s that resulted in the birth of their daughter, Sarah, and was followed by a 10-12 year long legal custody battle over her.

During that time, Cartwright claimed to be inspired by the 1897 Henry James novel, What Maisie Knew, a novel about a young girl with divorced and irresponsible parents.  He decided to adapt it into a screenplay as he was going through the tough custody dispute.

Fast-forward 18 years later to the release of the film: the story about a little girl who is shuffled around and neglected by her unmarried parents, Susanna and Beale (played by Julianne Moore and Steve Coogan) who are battling over her custody.  Susanna is portrayed as an abusive mother who neglects her child.

The film was based on the Henry James novel on the same topic, though.  No problem, right?

Blakley v. Cartwright

Blakley didn’t buy it.  She claimed in the complaint that:

Cartwright, who co-wrote the screenplay of the Film, has admitted that it is closely based on his own first hand personal experience of a lengthy and acrimonious battle for the custody of his daughter, Sarah.  Susanna is a thinly disguised portrait of his antagonist in that battle:  Sarah’s mother – the musician and singer, Ronee Sue Blakley. ..Cartwright wrote the screenplay to further his own feelings of hatred for Blakley by maliciously and falsely portraying her as a selfish and uncaring mother, when in fact she was a devoted and loving parent. This false depiction of Blakley has damaged her reputation and caused her to suffer severe emotional distress.

The problem is that Cartwright has publicly stated that he was inspired by his own personal life.  He made comments referencing his own custody battle and that he took notes and observed his own daughter Sarah for inspiration.

Blakley claims that anyone who knows her and saw the film would recognize Susanna as her.  In the complaint she goes on to support this claim by examining the “Of and Concerning” factors, arguing that:

(a) the names of Blakley and the mother in the film are similar: Ronee Sue and Susanna.  (in the book, the mother’s name is Ida);

(b) they have similar appearances in height, hair and dress;

(c) both are very close in age;

(d) both were musicians, singers, songwriters and producers whose careers were on the wane and even played the same instruments; and

(e) both Blakley and Cartwright, and Susanna and Beale, were unmarried parents engaged in bitter custody fights over their daughters.

She identified other similarities in real life events that allegedly mirrored events in the film.

The plaintiff also takes a shot at invalidating the film’s standard disclaimer: “The persons and events in this motion picture are fictitious.  Any similarity to actual people or events is unintentional.”  Blakley argues that the disclaimer is plainly not true because Cartwright made public statements referring to the autobiographical nature of  the work and that he closely based the main character on his daughter.

The complaint goes on to point out that Blakley and Cartwright belong to the same artistic community of people, alleging that the members of this community know enough to know that the film is about Blakley but don’t know enough to know that the negative portrayal of Blakley as Susanna is actually false.  This goes to the crux of Blakley’s claim regarding damage to her reputation and why she has been inflicted with emotional distress.

Listing 19 different allegedly defamatory statements, Blakley is seeking, among other things, $3 million plus punitive damages.  It will be interesting to see Cartwright’s response and the court’s analysis of the case.  But regardless of what happens here, there’s an important take away for writers and filmmakers.

Keep your fictional characters fictional

The complaint includes some wise advice from Professor Rodney Smolla, the author of The Law of Defamation.  The bottom line for writers and filmmakers who want to use a real individual as a base for a fictional character is that they have two ‘safe’ options from a legal viewpoint:

First, the author may make little or no attempt to disguise the character, but refrain from any defamatory and false embellishments on the character’s conduct or personality; second, the author may engage in creative embellishments that reflect negatively on the character’s reputation, but make substantial efforts to disguise the character, by changing the name, age, geographic setting, personality, occupation, or other factors sufficiently to avoid identification. When an author takes a middle ground, however, neither adhering perfectly to the real person’s attributes and behavior nor engaging in elaborate disguise, there is a threat of defamation liability.

Any material that could negatively impact a real person’s reputation should be closely examined.

Contributing Author: Josh Wueller

Shaliz Sadig, Esq

Shaliz Sadig

Associate Attorney

(212) 865-9848

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