Amazon spent somewhere in the neighborhood of $14 million during the Super Bowl for a minute-long teaser trailer of “Air,” a movie that tells the story of how Nike came to land Michael Jordan as a client. The Ben Affleck/Matt Damon flick follows a familiar trend these days, as it is “inspired by true events,” which is just a fancy way of saying, “We made up a bunch of stuff.”
Movies like “Elvis,” “Blonde,” and “I Wanna Dance With Somebody” have seen varying levels of post-hoc fact checking that call into question certain parts of the films, with film buffs rebuffing these concerns as mere “dramatization of controversial and contested historical events.” Still, these situations are small potatoes when compared to how some films and limited series have taken liberties with reality.
“Winning Time,” HBO’s look at the late 1970s/early 1980s rise of the L.A. Lakers, created massive amounts of controversy with the way in which it played fast and loose with the truth. Given the relatively recent era in which the events took place, the degree to which sports information is retained and a quality text from which to draw, it seemed almost purposeful that the series got so many things factually wrong, including places, dates, opponents and scores. This isn’t even accounting for how the athletes, including Magic Johnson and Kareem Abdul-Jabbar , publicly denounced the way in which they were portrayed.
Even more, Jerry West and his legal team have demanded an apology and retraction for the way in which the series portrayed the Laker legend, noting that the producers engaged in “legal malice.”
The New York Times did a deep dive on the cottage industry that has streaming services building mini-series around actual events, but then jazzing up reality to make life seem cooler than it was. The piece cites West’s portrayal as a “rage-aholic” as one of the more egregious cases of taking liberties with reality. It also points out that Linda Fairstein, the prosecutor in the “Central Park Five” case, is currently engaged in a lawsuit against HBO for its portrayal of her in the series “When They See Us.”
The defamation attorneys the Times quoted made it clear that these cases aren’t always easy to win, because the First Amendment does provide folks with the ability to create fiction based on true people. However, there are limits to this kind of thing:
Sometimes disclaimers are enough to protect a studio from legal liability, especially if they are prominently displayed in the opening credits and offer detail of what has been fictionalized — beyond a generic acknowledgment such as “based on real events,” legal experts say. The First Amendment offers broad protections for expressive works like film and television productions that depict real people by their real names.
But if someone can convincingly claim that he or she was harmed by what screenwriters made up, that is grounds for a strong defamation suit, said Jean-Paul Jassy, a lawyer who works on media and First Amendment cases in Los Angeles.
“A disclaimer is not a silver bullet,” he said.
This is in some ways akin to the way courts have afforded opinion pieces and reviews protection under the fair comment privilege. This allows writers to provide “pure opinion” that cannot be proven true or false without fear of falling afoul of defamation laws. That said, merely stating something is opinion isn’t a silver bullet either.
If you say, “In my opinion, Vince Filak is a lousy professor,” it falls into that opinion realm. It’s stated as such and there’s no way to define “lousy” so that a court could determine if I fit that definition or not. Plus, in defamation suits, the plaintiff (in this case, me) would have to show harm: Did I get fired? Did my classes shrink to the point I had to teach Medieval Basketweaving to maintain the course load in my contract? Did a group of random professors follow me around and mock me to the point I needed therapy? Probably not, so I’m not going anywhere with this.
However, if you say, “In my opinion, Vince Filak stabbed a student in the face with a fork during his 8 a.m. Writing for the Media Class on Feb. 20,” now you’re in trouble. It’s not an opinion, for starters, as we can prove it either happened or didn’t happen. It’s accusing me of a crime, which furthers my case. Plus, if that thing gains steam, I’m likely to get fired.
Writers, editors, producers and directors have always taken SOME liberties with reality when it comes to how they portray real people in fictional or semi-fictional stories. What makes this recent set of efforts more concerning is the degree to which they are bending the truth and the ways in which the fictionalization has the ability to warp public perception of real people in some harmful ways.
As for me, I’m looking forward to “Air” for the bad 1980s clothing and the Affleck/Damon banter that most of their collaborations pull off quite well. I’m also looking to see if anything gets dinged on a fact check, especially because, as anyone with any experience with Michael Jordan will tell you, he’ll take it personally.