July 23, 2024
What do Baby Reindeer and Inventing Anna have in common? Sure, both are miniseries on Netflix. More interestingly, though, and more pertinent to this blog (since I’m not Roger Ebert), both are subjects of defamation lawsuits against the streaming giant. Nor is either action the first; I previously wrote about Linda Fairstein’s defamation lawsuit against Netflix over how she was portrayed in When They See Us. (That case settled in early June.)
These two current cases touch on slightly different aspects of defamation law. Inventing Anna tells the “based on a true story” of con artist Anna Sorokin, who posed as an heiress and defrauded a variety of New York institutions and individuals out of somewhere around $275,000. In addition to the protagonist, the series portrays several of her real life friends, including Rachel DeLoache Williams, the plaintiff in the lawsuit. Williams claims the series’ version of her is false and defamatory, especially in scenes showing her character abandoning a depressed Sorokin in Morocco and thus painting her as a “disloyal” and “dishonest” villain (instead of a victim who was defrauded by Sorokin to the tune of $62K).
Netflix sought to dismiss the lawsuit on grounds the allegedly defamatory statements were substantially true or were not defamatory. It argued that the show’s creators have a “literary license” to give their interpretation of events, and the characterization of Williams was an opinion, protected by the First Amendment from defamation claims.
The District Court did not see things this way and in March of this year it denied the motion finding that, at the very least, some portions of Netflix’s portrayal of Williams were false and capable of a defamatory interpretation. Specifically, the Court concluded that the issue of whether Sorokin was actually distraught in Morocco, or if that was an invention of the producers, is a question of fact that can be proven true or false. (To oversimplify things a bit, only false statements of fact can serve as a basis for a claim of defamation.) “Whether Sorokin was in a troubled state and Williams left her at that point can be proven true or false,” the judge wrote. The Court further concluded that showing the Williams character ditching a friend when she was depressed could indeed leave viewers with a negative view of the real Williams, and thus serve as the basis for a defamation claim. The case is proceeding.
In contrast, the Baby Reindeer case will focus on the question of whether the series’ portrayal of the character Martha is “of and concerning” a real-life person — the plaintiff, Fiona Harvey.
Baby Reindeer, which begins with the words “this is a true story,” was written by Richard Gadd, who also plays central character Donny Dunn, a not very funny wannabe comedian. It’s a fictionalized version of Gadd’s own life, and part of Donny’s saga involves being stalked by a character named Martha, which Gadd drew off a real experience.
According to the lawsuit, filed in early June, Harvey claims Gadd based Martha on her and cites several similarities between real life and fiction, including that both Martha and Harvey are Scottish lawyers of about the same age who live in London. The suit also claims that Harvey bears an “uncanny resemblance to ‘Martha’” (or at least the actress who plays the character), and “‘Martha’s’ accent, manner of speaking and cadence, is indistinguishable . . .” from Harvey’s.
Moreover, one plot point in Baby Reindeer (I’m trying to avoid spoilers as the show has a lot of twists and turns that would sound ridiculous if you haven’t watched it) mirrors something that Harvey tweeted at Gadd in 2014. Because of these similarities, according to the Complaint, within days of the series airing Internet sleuths determined she was the basis for Martha and began subjecting her to social media vitriol. “As a result of [Netflix’s] lies, malfeasance and utterly reckless misconduct, Harvey’s life had been ruined,” the suit states.
Harvey claims she was defamed by Netflix because Baby Reindeer portrays Martha as “a twice convicted criminal” who spent five years in prison for stalking people, as well as physically and sexually assaulting Donny. Harvey says she has never been convicted of any crime and did not attack the real-life Gadd.
The interesting issue here is that relevant case law doesn’t include, as a test, whether a fictional character can have their real-life basis be identified by Internet sleuths. Rather, the inquiry is generally whether a person who knows the plaintiff would reasonably conclude that the plaintiff was the fictional character, or in this case, whether friends and acquaintances of Harvey would link her with Martha. Netflix has been pretty adamant that it took steps to disguise the identity of the real Martha. Since there are numerous elements in the Martha character’s storyline that are clearly not connected to anything in Harvey’s real life, it seems very possible that the real Martha is someone other than Harvey. But the Internet has spoken, and that’s enough for Harvey to sue Netflix for $170 million.
We’ll have to see how all this pans out; it should make for pretty good legal viewing (although nowhere near as popular as Baby Reindeer itself, which is set to become Netflix’s most-streamed show ever).
One final note: Some people have asked me if I think there’s something wrong with Netflix’s legal vetting of shows. The answer: maybe, but let’s keep in mind that Netflix produces A LOT OF CONTENT, and obviously most of it isn’t causing trouble. That said, it seems like the streaming behemoth should start to exercise a bit more caution when greenlighting these series based on real stories, because there is a lot of money at stake, the Internet is rife with people looking to dig up the “truth,” and someone, somewhere, may very well cry defamation.
July 10, 2024
I’m a litigator (you probably know that). I’m also a mom to a tween (that might be new information!). Both are generally very rewarding, but can also sometimes be a huge PITA.
They go together much better than you might expect because, oddly enough, I’ve found that some of the things I’ve learned as a parent make me a better lawyer and vice versa.
Because I had a few days off for Independence Day last week, I was able to spend some much-needed time with my family, along with some friends and their two-year-old. And during those languid summer days of leisure I was able to reflect on the overlap between practicing law and raising a kid.
A few highlights:
- Sometimes you just have to wait it out. Toddlers and tweens have their angry, stubborn and argumentative moods, and often nothing you say or do is going to get them out of one. Trying can even make it worse. This is also true for adversaries, clients, and judges. Sometimes people just need a beat or two to come around on their thinking, and your actions aren’t going to get a child, an adversary, a client or a judge to where you want them to be any faster. Sometimes the best approach is to simply say your piece briefly and then be quiet.
- Just because someone is loud, it doesn’t mean you have to give in to their demands or be loud back. As in point number one above, sometimes the child’s moods come with a lot of screaming or yelling. Same with clients and adversaries. It doesn’t help to respond in kind. More often than not, at least for me, the best approach is to keep on doing what I’m doing and not let all the noise change my path toward the end goal.
- However, listening is important. While #1 and #2 can be crucial, never completely tune out what’s being said. Sometimes in the midst of a person’s screaming fit, they’ll say some little pearl that highlights what’s really motivating the outburst (in the case of a tween) or a sticking point (in the case of an adversary). It’s important to be present, listen for those moments and store them away in case they prove useful down the line.
Of course, when it comes to a child, you know that someday, somehow, EVENTUALLY they’ll grow up and act like adults. I’m not going to comment on some adversaries.
June 25, 2024
The web is rife with articles explaining the importance of protecting a business’s trademarks. Some of them are even on this blog!
These articles usually (and correctly) point out that if someone is potentially infringing on your business’s trademark, it’s important to send a cease and desist letter or, if necessary, file a lawsuit because if others start to use your mark (or something like it) and the business doesn’t protect it, you can eventually lose trademark protection.
However, sometimes, it might be better not to start the legal ball rolling. I say this even though I’m a litigator, and yes, one of the ways I earn my living is by helping businesses sue for trademark infringement. Why? A couple of recent cases highlight the importance of taking a step back and thinking things through before sending that cease and desist letter or filing a lawsuit.
For starters, Trader Joe’s case against its employee union, Trader Joe’s United. The union sells mugs, tee shirts, and other merch branded with their Trader Joe’s United logo to raise money for organizing locations throughout the supermarket chain. Trader Joe’s claimed trademark infringement and sued. For comparison, here are Trader Joe’s marks:
And here’s what the union used:
The District Court granted the union’s motion, writing that it felt “compelled to put legal formalisms to one side and point out the obvious. This action is undoubtedly related to an existing labor dispute. It strains credulity to believe that the present lawsuit — which itself comes dangerously close to the line of Rule 11 — would have been filed absent the organizing efforts that Trader Joe’s employees have mounted (successfully) in multiple locations across the country.” In other words, the Court was saying that the real reason Trader Joe’s sued was to try and shut down the union, and that given the “extensive and ongoing legal battles of the Union’s organizing efforts at multiple stores, Trader Joe’s claim that it was genuinely concerned about the dilution of its brand resulting from [the Union’s] mugs and buttons cannot be taken seriously.” The Court went on to hold that no reasonable consumer would think that the union’s merch originated with Trader Joe’s — the central inquiry in a trademark infringement case. The Court also awarded the union its legal fees, noting in its decision that the case stood out “in terms of its lack of substantive merit . . . .” Ouch.
Famed restaurateur David Chang and his company, Momofuku, also recently lost a trademark battle they probably wish they hadn’t started. On the bright side for Chang and Momofuku, there was no lawsuit, and they weren’t unceremoniously kicked out of court like Trader Joe’s. However, they did have to issue an apology after sending a bunch of cease-and-desist letters to other Asian-American-owned businesses demanding that they cease and desist using the term “Chili Crunch.” (For those of you who mostly stick to milder foods, Momofuku Chili Crunch is a packaged “spicy-crunchy chili oil that adds a flash of heat and texture to your favorite dishes.”)
There was a lot of pushback on these letters from the recipients, who posted them to social media and shared them with mainstream media outlets, highlighting how Chang and Momofuku were trying to assert rights over a generic term frequently used in Asian and Asian-American gastronomic offerings. The companies (rightly) felt that Chang and Momofuku were trying to use their status and financial resources to attack other Asian-American-owned companies unjustifiably.
And then, there’s the case of the Los Angeles Police Foundation, a private group affiliated with the Los Angeles Police Department. It sent a cease and desist letter to a company selling tee shirts emblazoned with the words “Fuck the LAPD” on top of the Los Angeles Lakers logo.
In its letter, the LAPF asserted it is “one of two exclusive holders of intellectual property rights pertaining to trademarks, copyrights and other licensed indicia for (a) the Los Angeles Police Department Badge; (b) the Los Angeles Police Department Uniform; (c) the LAPD motto ‘To Protect and Serve’; and (d) the word ‘LAPD’ as an acronym/abbreviation for the Los Angeles Police Department . . .”
There are a lot of whiffs here for the LAPF. Strike one: Government agencies can’t get trademark protection for their names. Strike two: The LAPF isn’t the LAPD, so they have no basis for claiming infringement on something that isn’t even theirs. Strike three (it’s a doozy): Obviously, the logo on these shirts belongs to the Lakers, not the LAPF. Strike four: It’s fairly safe to assume that the shirt is meant as a parody and/or a political commentary, which are protected under the First Amendment.
Worth noting here is the tee shirt manufacturer’s carefully crafted response to the LAPF after receiving the cease-and-desist letter: “LOL, no.” That was literally the entirety of the tee shirt maker’s response—points for clarity, conciseness, and all-around humor.
What does this all mean? Well, if you send a cease and desist letter or file suit to protect a trademark you don’t actually have (LAPF), or if you’re trying to accomplish a goal that is not related to actually protecting your trademark (Trader Joe’s), you’re just going to be embarrassed. And while the Momofuku matter is more complicated and nuanced, it’s fair to say many companies use the term “Chili Crisp,” making Momofuku’s efforts to trademark it seem like the work of a bully.
So, the lesson here is that legal claims don’t exist in a vacuum. Examine the validity of your claims, but also consider the potential negative publicity and damage to your reputation before firing off cease-and-desists willy-nilly or filing suit. Even if you win in court, sometimes public opinion is the final judge, and no business wants to upset that judge.