In Hollywood, there’s a market for peace of mind. The product is called “life rights,” which unlike copyrights, trademarks, and patents, is not recognized by any specific statute. Life rights are really just a promise not to sue over a movie or TV show. Plus, people who sell life rights might offer some cooperation on the publicity front. But it’s really not legally necessary to buy these rights. Again, it’s for peace of mind. It can be a shakedown for agents who represent the famous, the accidentally and fleetingly famous (think rescued Chilean miners), and the notorious (e.g. Anna Sorokin).
Not all studios buy life rights before proceeding with a biopic. And some famous individuals have no interest—no matter the financial offer—in being fictionalized. Alas, occasionally, amid the sea of movies and TV shows “based on true events” (Hulu’s The Dropout and Pam & Tommy, AppleTV+’s WeCrashed, Showtime’s SuperPumped, to name a few recent standouts), someone threatens to sue.
That’s what NBA legend Jerry West has done in response to Winning Time: The Rise of the Lakers Dynasty. The unvarnished HBO series, about the “Showtime” era when Magic Johnson and Larry Bird entered the league and helped reignite interest in the NBA, has received good reviews and viewership is growing week-to-week. But there’s one constituency that loathes it—those who were actually there with the team. Indeed, Winning Time co-creators Max Borenstein and Jim Hecht fictionalize characters like owner Jerry Buss to the point of caricature. For a critical but non-legal take on the series, read this review by Kareem Abdul Jabbar himself.
West, the former star player who later became the Lakers’ general manager, is particularly incensed. In a letter addressed to HBO, Warner Bros. Discovery C.E.O. David Zaslav, and producers Adam McKay and Kevin Messick (read here), West’s attorney Skip Miller writes, “You have perpetrated an egregious wrong on a good and decent man and have harmed him in the process. This should never have happened; and by issuing a retraction, you can ameliorate some of the harm you have caused.” West specifically objects to how Jason Clarke’s characterization portrays him as an “out-of-control, intoxicated rage-aholic” and a “vulgar and unprofessional bully,” which, according to the stern letter and testimonials from those who knew him, is “the polar opposite of the real man.”
That might be so, but if broad brushstrokes, discolored as they may be, were enough to paint over the First Amendment, we would never get a chance to see an acclaimed movie like The Social Network (Mark Zuckerberg) or a TV series like The Crown (the British royals). A Ninth Circuit Court of Appeals ruling six years ago concerning Oscar winner The Hurt Locker confirmed that storytellers get to “take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art.” Even if there are aspects that are “unflattering,” that’s not enough to make these stories legally suspect. For someone to prevail, there must be elements that are “provably false” or a portrayal that puts the real-life individual “in a false light that would be highly offensive to a reasonable person.”
Plus, even if a famous person can overcome those hurdles, that’s still not enough because these individuals are public figures who must establish “actual malice,” which is to say, knowledge of falsity or reckless disregard for the truth. West, an “83-year-old legend and role model”—his lawyer’s words—certainly qualifies as a public figure.
Jerry West’s Gambit
Again, the legal deck is stacked for Hollywood creatives. Recent case law includes a notable opinion concerning Olivia de Havilland’s attempt to punish FX over Feud, Ryan Murphy’s series about Bette Davis and Joan Crawford. “[F]iction is by definition untrue,” noted the California appeals court. “It is imagined, made-up. Put more starkly, it is false. Publishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice.” As such, the appellate justices continued, public figures making a claim over a fictitious work must show the producers “intended to convey the defamatory impression.”
The de Havilland case sure looks likely to doom West’s gripe, especially considering how the actress similarly highlighted how she was a living legend only to be tarnished by made-up stuff that cast her in a vulgar light. Nevertheless, West has one faint hope, courtesy of Netflix. Three months ago, a California federal judge concluded that former Soviet chess grandmaster Nona Gaprindashvili had established a prima facie case of defamation over The Queen’s Gambit, the Emmy-winning limited series about a female chess prodigy. U.S. District Court Judge Virginia Phillips’s Jan. 27 ruling didn’t generate enough attention. But if you read West’s retraction demand again, its significance is obvious. His attorney references the Gaprindashvili decision three times and includes a full copy of the 25-page order.
Notably, Queen’s Gambit is completely fictional. Well, except it is set in the Cold War era of the 1960s. And at one brief moment during the show’s exciting last episode, a radio announcer attempts to put the main character’s accomplishments in perspective: “The only unusual thing about her, really, is her sex. And even that’s not unique in Russia. There’s Nona Gaprindashvili, but she’s the female world champion and has never faced men.”
Most viewers probably didn’t even realize this was a real-world reference, but Gaprindashvili heard it and was aghast. She had faced men in tournaments—and beat them, including 28 male players at once in 1965. She thought the Queen’s Gambit remark was sexist and false. In the subsequent defamation suit, Netflix responded by arguing that no reasonable viewer would have understood the objectionable line to convey a statement of fact given that the series was fictional. Netflix also argued that viewers wouldn’t recognize the defamatory meaning without larger knowledge of competitive Soviet chess in the 1960s.
The judge disagreed with Netflix, saying it was not insulated from liability. But what really stands out here, and what may give pause to those making future biopics, is how Judge Phillips treated the fail-safe issue of actual malice: Because Queen’s Gambit was based on a novel that included a line about how Gaprindashvili had faced male grandmasters, the judge said the show’s creator either knew the truth and ignored it, or deliberately decided not to learn what might confirm the falsity of the screenplay.
Alas, that precedent is trouble for HBO, and potential ammo for Jerry West, because Winning Time is based on a book by Jeff Pearlman titled, Showtime: Magic, Kareem, Riley, and the Los Angeles Lakers Dynasty of the 1980s. If West does sue HBO, under this new Gaprindashvili standard, he’ll highlight how the show has departed from its source material to tarnish him.
Meanwhile, Netflix has already filed an appeal to the Ninth Circuit in the Gaprindashvili case, with the opening brief due next month and oral arguments likely to come later this year. I imagine this is the type of appellate showdown that will attract amicus briefs from outsiders, including studios aiming to protect the ever-popular genre of dramatizations of true stories. A loss might mean forgoing these projects, or at least, engaging in the “life rights” market for peace of mind.