HBO’s ‘Winning Time’ and the Problem with Portrayals
Earlier this year, HBO’s ‘Winning Time’ premiered on its streaming platform HBO Max, and with its debut came hordes of fanfare – and controversy.[1] Based on the book “Showtime: Magic, Kareem, Riley and the Los Angeles Lakers Dynasty of the 1980s” by Jeff Pearlman, the star-studded series (John C. Riley, Adrien Brody, and Jason Segel, just to name a few) chronicles the exciting and high-flying ‘Showtime Lakers’ of the ‘80s.[2] The hit show ran into legal issues earlier this year when Jerry West, former Lakers coach, player, general manager, and the man on the NBA logo, threatened to sue HBO for his portrayal on the show. [3] West’s lawyer sent a letter to HBO calling for a retraction and an apology, claiming that ‘Winning Time’ falsely portrayed West as an “out-of-control, intoxicated, rage-aholic.”[4]
HBO issued a public response, stating “HBO has a long history of producing compelling content drawn from actual facts and events that are fictionalized in part for dramatic purposes. ‘Winning Time’ is not a documentary and has not been presented as such.”[5] This response may be the bookend to this controversy. After all, ‘Winning Time’ is not the first tv show or movie with a disputed portrayal, nor will it be the last – and the production companies behind these shows and movies typically prevail.[6]
Defamation law provides screenwriters with significant latitude to take dramatic liberties.[7] Many states have anti-SLAPP (“strategic lawsuits against public participation”) laws that help dismiss lawsuits that are “designed to intimidate activities, news organizations, and filmmakers from exercising their First Amendment rights.”[8] In support of an anti-SLAPP motion to dismiss in New York, a defendant “must provide proof that the claim relates to the defendant’s exercise of their free speech rights ‘on a matter of public interest.’”[9] Once a defendant provides evidence that the anti-SLAPP law applies, the burden of proof shifts to the plaintiff.[10] If the plaintiff then cannot show that the claim has a “substantial basis in law” or is supported by a “substantial argument” to modify existing law, the suit will be dismissed.[11]
For a plaintiff who is a public figure to succeed on a defamation claim, they must prove falsehood and actual malice. Malice is a “a subjective state of mind of the writer, the broadcaster, whoever, that tells you that they knew or should have known that what they were publishing was false.”[12] 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.[13] In West’s case, malice would be proved by showing that HBO intentionally portrayed West in the hope of “insinuating a defamatory import to the view, 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.”[14]
Producers of TV shows and movies typically rely on the aforementioned “reasonable viewer” standard to defend their portrayals of public figures. This defense is typically established with something that we may all be familiar with – a disclaimer. In August of 2022, a defamation suit was filed against Netflix for its portrayal of Rachel DeLoache Williams in its original series ‘Inventing Anna’.[15] Williams claims that she was portrayed as a “greedy, snobbish, disloyal, dishonest, cowardly, manipulative, and opportunistic person,” among other things.[16] Netflix asserts that the series is not classified as a documentary or reality series.[17] This is highlighted by the fact that every episode of the series begins with a tongue-in-cheek disclaimer that says “[t]his whole story is completely true, except for the parts that are totally made up.”[18] Netflix’s defense is centered around the fact that there is a disclaimer.[19]
However, a disclaimer is not a trump card that a network or producer can pull to automatically win a case. In September of 2021, the famous Russian chess player Nona Gaprindashvili filed a defamation lawsuit against Netflix for its portrayal of her in the hit show ‘The Queen’s Gambit’.[20] The show claimed that Gaprindashvili had never faced men in her career. This was false, at the time the episode took place, Gaprindashvili had faced at least ten male chess grandmasters.[21] Similar to ‘Inventing Anna’, each episode of ‘The Queen’s Gambit’ begins with a disclaimer, stating that “the characters and events depicted in this program are fictitious. No depiction of actual persons or events is intended.”[22] But in this case, U.S. District Judge Virginia A. Phillips struck down Netflix’s motion to dismiss, finding that Gaprindashvili had made a plausible argument that she was defamed.[23] Judge Phillips also held that the disclaimer was “not enough to dispel the notion that the show was asserting a factual claim.”[24] Netflix eventually settled with Gaprindashvili.[25]
In addition to the disclaimer, there is an expectation that a “reasonable viewer” has the knowledge to discern what is real from what is not real. One court stated:
“[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”[26]
Another concluded that most viewers of docudramas “are aware by now that parts of such programs are more fiction than fact.”[27]
This is a welcome revelation for HBO and the producers of ‘Winning Time.’ Similar to the two shows mentioned above, each episode begins with a disclaimer. The show itself is also extremely stylized, with frequent use of jump cuts, animated asides, monologues, and fourth-wall breaking. To call ‘Winning Time’ a mere dramatization would be a discredit to the sheer absurdity and stylization of the show. The combination of anti-SLAPP and the actual malice standard presents a significant, but not impossible hurdle for defamation plaintiffs, and Mr. West certainly has an uphill battle on his hands. As someone who has watched the series, there was never a point where I thought “this is an accurate depiction of what happened.” However, I may be a reasonable viewer, but I definitely am not a judge.
Footnotes
