On June 11, 2020, the Second Circuit handed down a decision in the case of Greene v. Paramount 1 on a question the Court had to admit it had not previously “spoken definitively on:” can a person be libeled by what is clearly labeled a work of fiction?
At issue is the movie “The Wolf of Wall Street.” The movie is based on the book of the same name written by Jordan Belfort, detailing his (very real) exploits at the brokerage firm Stratton Oakmont. “Belfort wrote about various criminal and other unsavory activities at Stratton Oakmont in the 1990s. Belfort was charged with and pled guilty to, inter alia, securities fraud and money laundering, for which he served time in prison and was ordered to pay over $100 million in restitution.” 2
The Plaintiff, Andrew Greene, worked at Stratton Oakmont. In fact “Greene is discussed extensively in the Book both under his full name, Andrew Greene, as well as his nickname ‘Wigwam’ (a reference to his toupee). The Book describes Greene as engaging in illegal conduct at Stratton Oakmont. Despite his awareness of the contents of the Book, Greene never sought any legal redress with respect to its depiction of him.” 3
The first problem for the Plaintiff is that this does not carry over into the film “The Wolf of Wall Street.” There is no character named Andrew Greene. The character that Greene is upset about is named “Nicky Kosskoff,” who in fact, is the name of the husband of one of the film’s producers. 4
Thus, the Plaintiff is faced with a daunting burden of proof. In order to prevail he must prove the libelous statement were “of and concerning” him. 5 Faced with the fact that there is no character of the same name, the character must have traits or take actions that would lead anyone who knows the Plaintiff to recognize that the character is in fact, the Plaintiff. Yet, in order to prove libel, the Plaintiff must then proceed to prove the opposite, that what the character does is so terrible and awful that the character could not possibly be him, and is therefore defamatory.
Or put more succinctly: “That’s me! But it couldn’t possibly be me!”
The similarities are scarce. Both the character Nicky Kosskoff and Plaintiff Andrew Greene worked at Stratton Oakmont, and both wore toupees. Otherwise, there are few similarities. The screenwriter claimed that Nicky Kosskoff was in fact a composite for three different people.
Compounding the Plaintiff’s problems is that he admits that he is a public figure. This, under the landmark case of New York Times v. Sullivan, 6 requires the heightened showing of “malice,” that either the publisher knew the statement was false and published it anyway, or published it despite seeing obvious reason to doubt the truth of the statement.
In affirming the dismissal with prejudice, the Court points to the disclaimer shown as the first slide of the end credits.
“While this story is based on actual events, certain characters, characterizations, incidents, locations and dialogue were fictionalized or invented for purposes of dramatization. With respect to such fictionalization or invention, any similarity to the name or to the actual character or history of any person, living or dead, or any product or entity or actual incident, is entirely for dramatic purpose and not intended to reflect on an actual character, history, product or entity.” 7
But this is a bit of a slight of hand. The majority of the audience appeal of “The Wolf of Wall Street” (or “The Irishman,” or “Goodfellas”) is that these are true stories about real people. To then run and hide behind “this is a work of fiction” is not quite playing on a level field.
And it doesn’t always work.
A jury in Georgia awarded $100,000 to a woman who claimed she had been defamed by a work of fiction titled “The Red Hat Club.” 8 There, unlike Andrew Greene, the Plaintiff was able to show over two dozen “specific similarities” between her and the character “Su-Su,” who much to the dismay of the Plaintiff, is portrayed as an promiscuous alcoholic. 9
It is often said that truth is stranger than fiction. But then again, the truth is not actionable, and the fiction is.