Memoirs--recent scandals: memoirs that turned out to be fiction

James Frey, "A Million Little Pieces"

Oprah

Misha Defonseca, "Misha: a Memoire of the Holocaust Years"

Margaret Jones (aka Margaret Seltzer), "Love and Consequences"

New York Times

"Docudrama"--part true/part creative fiction about ordinary persons (caught up in newsworthy events, issues, crimes . . .) or about celebrities. They present significant legal risks which can be balanced by:

"errors and omissions" insurance

waivers/releases (for $$)

 

2 important legal risks:

DEFAMATION

ENGLISH COMMON LAW COURTS CONSIDERED REPUTATION TO BE AN INTEREST DESERVING OF PROTECTION. THEY RECOGNIZED AN ACTION FOR MONEY DAMAGES TO COMPENSATE FOR INJURY RESULTING FROM DEFAMATORY COMMUNICATION.

CIVIL ACTION
TORT

I. DEFINITION: "A DEFAMATORY STATEMENT IS ONE THAT IS FALSE AND INJURIOUS TO THE REPUTATION OF ANOTHER OR EXPOSES ANOTHER PERSON TO HATRED, CONTEMPT OR RIDICULE OR SUBJECTS ANOTHER PERSON TO A LOSS OF THE GOOD WILL AND CONFIDENCE IN WHICH HE OR SHE IS HELD BY OTHERS. . . . A DEFAMATORY COMMUNICATION IS ONE THAT TENDS TO HARM THE REPUTATION OF ANOTHER AS TO LOWER HIM IN THE ESTIMATION OF THE COMMUNITY OR TO DETER THIRD PERSONS FROM ASSOCIATING OR DEALING WITH HIM."

II. ELEMENTS OF THE TORT OF DEFAMATION

* PUBLICATION (TO ONE OTHER THAN THE PERSON DEFAMED)

* OF A FALSE STATEMENT OF FACT

* UNDERSTOOD AS BEING OF AND CONCERNING THE PLAINTIFF

*RESULTING IN HARM TO PLAINTIFF’S REPUTATION

[If the plaintiff is a public official or a public figure (celebrity), he or she must show "actual malice" to be able to have a cause in defamation. Without a showing of actual malice, a public official's or celebrity's defamation suit will be dismissed. Actual malice means that the defendant making the statements knew they were false or had "serious doubts about their truth."

Case: Davis v. Constantin Costa-Gavras, Universal Studios, and MCA, Inc. (S.D.N.Y. 1987).

At issue was defamation in the movie, "Missing," ["the dramatization of a true story" involving real, fictional and composite characters]based on a book, The Execution of Charles Horman.

*no serious doubt

*first amendment freedom for dramatization

INVASION OF PRIVACY

1. False Light (Note similarity to defamation)

*DISCLOSURE/PUBLICATION

*OF FACTS PLACED IN A CONTEXT THAT PUTS THE PLAINTIFFF IN A FALSE LIGHT

*IDENTIFICATION

*RESULTING IN HARM (REPUTATION/HUMILIATION

Case: Doe v. One America Productions ("Borat")

2. Public Disclosure of Private Facts

*DISCLOSURE/PUBLICATION

*OF FACTS CONCERNING THE PRIVATE LIFE OF THE PLAINTIFF

*THE DISCLOSURE WOULD BE HIGHLY OFFENSIVE TO A REASONABLE PERSON OF ORDINARY SENSIBILITIES

*THE FACTS ARE NOT OF LEGITIMATE PUBLIC CONCERN

*RESULTING IN DAMAGE: DISTRESS, INJURY TO REPUTATION

 

Case: Ross v. Midwest Communications, Inc. (5th Cir. 1989).

At issue, a WCCO-TV documentary whose premise was that a convicted rapist was innocent. The documentary identified a rape victim who had NOT identified him in a line-up by name and former residence.

Case: Howell v. New York Post (N.Y. 1993)

At issue, a photo of Hedda Nussbaum walking with another patient on the grounds of a private psychiatic hospital.

Case: Shulman v. Group W. Productions, Inc. (Cal. 1998).

At issue, a 9 minute broadcast "On Scene: Emergency Response," showing in detail (and recording conversations) Ruth Shulman's accident scene and her trip on a helicopter to the hospital.

descriptive vs. normative 'newsworthiness'

nexus/logical relationship between newsworthy events and the private facts disclosed

3. Intrusion

*INTRUSION

*INTO PLAINTIFF'S SOLITUDE/SECULSION

*IN A MANNER HIGHLY OFFENSIVE TO A REASONABLE PERSON

*RESULTING DISTRESS

Case: Shulman v. Group W. Productions, Inc. (Cal. 1998).

[needs to go to trial on issues of

miked nurse

conversation inside chopper]

 

Case: