HBO’s Winning Time starts with a warning: “This series is a dramatization of certain facts and events. Some of the names have been changed and some of the events and characters have been fictionalized, modified or composited for dramatic purposes.”
A version of this disclaimer appears in other movies and shows based on real events. They’re meant to tell viewers that parts of what they’re watching are true, while other parts are dramatized or entirely made up. But how are people supposed to tell the difference, especially when filmmakers have increasingly blurred the line between truth and fiction for the sake of drama?
More from The Hollywood Reporter
Jerry West says most viewers now believe him to be what his attorney called an “out-of-control, intoxicated rage-aholic” based on his portrayal in Winning Time, adapted from a book by Jeff Pearlman that chronicles the rise of the Los Angeles Lakers dynasty in the 1980s. West, who served as the team’s coach and general manager during this era and is now an executive for the Los Angeles Clippers, demanded last week a retraction, apology and unspecified damages for the “false and defamatory portrayal” in a letter to Warner Bros. Discovery, HBO and series producers Adam McKay and Kevin Messick.
“The Jerry West in Winning Time bears no resemblance to the real man,” wrote his attorney Skip Miller. “The real Jerry West prided himself on treating people with dignity and respect. Winning Time is a baseless and malicious assault on Jerry West’s character. You reduced the legacy of an 83-year-old legend and role model to that of a vulgar and unprofessional bully — the polar opposite of the real man.”
West takes issue with the series’ characterization of him as a bully, borderline alcoholic and incompetent coach who pushed back on drafting Magic Johnson. In the show, Jerry Buss, owner of the Lakers, tells West in one scene, “I used to drink a lot of bourbon. I switched to Vodka. You can smell it less. Just a tip.” West argues that the show defamed him, regardless of the two sentence disclaimer that appears before the first episode of the series.
West is right that a show can still defame someone even if it has a disclaimer. If he chooses to sue, part of the court’s analysis in whether the warning properly served its intended purpose will be if the show represented itself as true and if viewers recognized his character in the series as him.
Recent defamation cases on the use of disclaimers don’t favor the producers of Winning Time. In a lawsuit from Georgian chess champion Nona Gaprindashvili, who says she was defamed in an episode of Netflix’s The Queen’s Gambit, a judge refused to dismiss the case because she found that Gaprindashvili proved that she’s likely prevail on her defamation claim despite the appearance of a disclaimer that the show was a work of a fiction. The judge distinguished the use of the disclaimer in the show from one that appears in The Laundromat, a Netflix movie starring Gary Oldman about the Panama Papers. In that case, the court found that no reasonable viewer would believe that the film was making assertions of objective fact rather than dramatizing events.
In the case of The Queen’s Gambit, “the Series includes a similar disclaimer, but the Line resembles one of those factual details incorporated into the Series for believability more than it resembles the main plot devices,” wrote U.S. District Judge Virginia Phillips. She concluded that the streaming giant acted with a “reckless disregard” for the truth, rejecting arguments that it can’t be sued for defamation of real people in works of fiction.
Particularly troubling on this point in Winning Time is a scene featuring Buss in which he breaks the fourth wall in typical McKay fashion to tell viewers, “Jerry West, Head Coach of the Lakers, considered a true gentleman of the sport to everyone who does not know him.” Miller argues that the scene implies that the series depicts the “real” West.
Alexander Rufus-Isaacs, a defamation attorney who represents Gaprindashvili in her lawsuit against Netflix, said the scene should trouble the show’s producers because it vouches for their portrayal of West.
“That would be a massive hurdle for the producers to overcome,” Rufus-Isaacs says. “When the screenwriter is being deposed, he’s going to have a very hard time denying that he meant for the audience to believe that he’s showing the real Jerry West. That’s a very good fact for West’s side and very bad for the producers.”
He emphasizes that the creators of Winning Time didn’t add any composite characteristics to West’s character, like change his name, identifying features or position at the Lakers, so that viewers wouldn’t be misled into believing that the character was a true portrayal of the NBA Hall of Famer.
Media lawyer Daniel Novack agrees that the scene will be a problem for the creators of Winning Time if they’re sued and the court considers whether a reasonable viewer would believe that the show is a truthful account of events.
“You’re literally telling the audience that this is the real West,” Novack says. “When breaking the fourth wall, it’s basically them saying ‘Trust us. This is real.’”
In recent years, there’ve been numerous defamation lawsuits filed against the producers of docudramas for allegedly false and misleading portrayals of characters and events. Disclaimers have not been found to have shielded them from liability in most of those cases.
Still, if he chooses to pursue a lawsuit, West will likely have a tough time prevailing because defamation cases are notoriously difficult to win for people in the public sphere.
There are vast free speech protections allowing for criticism of elected officials and other public figures, who thus face a higher burden in defamation cases, having to prove that the allegedly defamatory statements were made with actual malice, defined as the intent to harm with the prior knowledge that what was said was actually false. Mere negligence isn’t enough.
The standard has been the downfall of several defamation lawsuits, including ones filed by Donald Trump, Sarah Palin and a person who sued over his portrayal in The Wolf of Wall Street.
“A pleading that says, ‘He’s not like this,’ isn’t good enough,” Novack says. “Where’s the smoking gun that [the showrunners] knew better? Where were they put on notice?”
West’s letter to the creators of Winning Time includes statements from Lakers personnel challenging his depiction in the series as untrue.
Charlene Kenney, executive assistant to Lakers owner Jerry Buss for over 20 years, wrote: “I have watched the HBO show Winning Time and the character they portray as Jerry West is nothing like the man I knew. I never heard Jerry yell or scream at me or anyone. In fact, I never heard Jerry even raise his voice at the office. He was always a gentleman and he treated me and others within the Lakers organization with respect and professionalism. I also never heard Jerry West use swear words or curse words in the office. And I never witnessed Jerry throw or break anything in anger. I also never heard Jerry on a tirade or rant about anything. Lastly, I never saw Jerry drink alcohol at the office, nor did I ever see Jerry intoxicated at the office.”
Likely anticipating an actual malice defense, Miller emphasizes that the allegedly defamatory scenes of West’s temperament don’t appear in Pearlman’s book. He points to a longtime Lakers employee who refused to consult on the show because of its inaccurate portrayal.
Gary Vitti, who spent 32 years as head trainer for the Lakers, said the show presented “a total mischaracterization of Jerry West.”
“You were on notice of the falsity, yet you still released Winning Time knowing it was false and misleading,” Miller wrote. “This is the epitome of malice.”
Kareem Abdul-Jabbar has also criticized the show for its “deliberately dishonest” depiction of West. So has Arn Tellem, vice chairman of the Detroit Pistons.
Rufus-Isaacs believes that a lawsuit from West might be one of the few cases to get past dismissal because Pearlman’s book largely portrays West in a flattering light. “Unless the writer had good reason to believe the book is flawed, there’s a strong likelihood he wins on malice,” he argues.
As part of the assessment, the court will consider whether the show’s creators had sources who gave corroborating accounts for their portrayal of West. As long as one of them said West could be known to act like he did in the series, that may be enough for the producers of Winning Time to escape a defamation claim.
While he doesn’t think West should or will end up pursuing a lawsuit, Novack questions whether recent docudramas have gone too far in blurring the line between fiction and reality.
“They want to have all the benefit of the show being real but also want to heighten and dramatize it,” Novack observes. “Dramatization to me means turning the amp up from a six to an eight. If someone’s at a three, you can’t amp it up to 10. It’s a fine line. How do you do that without going too far?”
HBO didn’t respond to requests for comment.
Best of The Hollywood Reporter
Click here to read the full article.