A Rogue in Fact and Fiction: The Wolf of Wall Street Suit
A recent New York case, Greene v. Paramount Pictures Corp., arising from the Martin Scorsese film “The Wolf of Wall Street,” discusses a nuance in defamation law known as libel by fiction. This claim seem like an oxymoron, because libel requires false statements presented as facts, not fiction. It arises when a fictional work portrays a character in a negative manner that is based on the personality or physical characteristics of the plaintiff such that people who know the plaintiff will believe the plaintiff to be the basis for the fictional character. This thereby links the plaintiff with sufficiently negative characteristics to form the basis of a defamation claim.
The film features a brokerage house, Stratton Oakmont, whose co-founders were arrested and incarcerated for securities fraud and money laundering. The plaintiff in the recent suit, Andrew Greene, a former lawyer at Stratton Oakmont, based his claims for alleged violation of the right of privacy and for defamation on one of the characters in the movie, Nicky Koskoff, a composite character based on a number of individuals. He argued the character was using his identity because of their shared characteristics, even without direct use of the plaintiff’s name, picture, likeness or voice. For example, in the film, Koskoff was mocked for wearing a bad toupee, as Greene was in real life.
The district court in New York held that under New York’s statutory invasion of privacy law (N.Y. CVR. Law §§ 50 and 51), a claim is not actionable without the direct use of a person’s name or likeness. Similar characteristics between a fictional character and an identifiable person are not enough to trigger protection under the statute. Additionally, no common law right of privacy is recognized in New York.
However, on the defamation claim, the court found that the plaintiff could advance a libel claim despite the leading New York case discussing libel by fiction, Springer v. Viking, which severely limited this theory. Because “The Wolf of Wall Street” was based on a true story, and billed as such, it was reasonable for someone who knew the plaintiff to associate Koskoff with Greene to such an extent that they are convinced the depiction is not fiction, but fact. Therefore, the claim survived the motion to dismiss. But as the case proceeds through litigation, Greene has a substantial burden of proof, even more weighty than most defamation claims.
More via Frankfurt Kurnit and the Center for Art Law.