• James McCauley

Showtime in the Court Room: Potential Legal Action Arising from Misrepresentation in "Winning Time"


[1]


Hollywood showbusiness is exactly that – a show. Therefore, it is expected that producers attempt to drive their ratings up by creating and developing dramatic characters, often one of the largest components of a show’s success.


Recently, however, a question has come up that merits consideration: When portraying real people in shows largely based on real events, do networks have a duty to portray them in certain ways?


One example of this is former Chicago Bull Scottie Pippen, who was (and still is) clearly unhappy with his portrayal in the docuseries The Last Dance.[2] Pippen went out of his way to publicly voice his displeasure about his secondary role and the way he was portrayed in the documentary chronicling the late-1990 Chicago Bulls.[3] Though very adamant that this document paints him as “merely a prop” and in a more negative light than what truly reflects his role with the Bulls during the time period, Pippen never brought any legal action against ESPN despite this allegedly incorrect portrayal reaching the screens of millions and likely altering some degree of the public’s perspective of him.


On the other hand, former Laker executive and current Hall of Famer and NBA logo silhouette Jerry West seems to think there are legal actions to be had in cases of this nature. West and his attorney sent a letter to executive producer Adam McKay, as well as HBO and Warner Bros. Production, demanding a legal retraction from HBO regarding the HBO series Winning Time.[4]


The drama series chronicles the “Showtime” era Los Angeles Lakers, featuring star Lakers players Magic Johnson and Kareem Abdul-Jabbar as well as key figures from the storied Lakers franchise including owner Jerry Buss, coach Pat Riley and executive Jerry West.[5] There is no denying that the casting, production, and vintage feel of the film are geared towards making viewers feel like they are in the room as one of sports greatest dynasties took shape. However, many prominent Laker figures including West have come forward and expressing their displeasure with how the events are presented and how the essential figures are portrayed[6]. Examples range from Kareem Abdul-Jabbar’s negative review describing the reduction of West to a “Wile E. Coyote cartoon to be laughed at,” to former Lakers trainer Garry Vitti refusal to be an in-house consultant for the show because of his disagreement with how West was portrayed.[7]


Further, another acknowledgement of the spotty accuracy of the series may be seen in a recent tweet from Jeanie Buss, daughter of Jerry Buss and current CEO of the Los Angeles Lakers, commenting that the show may not be fully accurate in their depiction of the events that took place in mentioning that an actual true story is on the horizon and will be airing on Hulu later this year:


In Winning Time, West is depicted in a manner that, according to many close to him and the Laker organization at the time, may be described as a “total miscategorization” of West’s personality.[8] As result, West’s attorney has written a letter to HBO expressing unhappiness with his “egregious and cruel” portrayal and requesting an apology as well as a retraction of the false depiction of West[9]. “They belittled something good,” said West, “If I have to, I will take this all the way to the Supreme Court.”[10]


The remedies for West, the Lakers and the NBA are ready for the taking if they so choose. West’s indication that HBO “violated the law” in their portrayal of him sure sounds like an indication that he plans to explore these options[11]. The lowest-hanging fruit for West would be a defamation suit, in which he would assert that the network injured West’s reputation. The letter from West’s attorney certainly indicates that he feels his reputation has been harmed by the documentary, as he requests they “mitigate the harm” they have caused to him[12]. Another course of action for West may be a libel lawsuit, filed after a lie that harms one’s reputation.


This is not the first time a lawsuit for a false portrayal has been filed against a television show. The Cayuga Nation and Clint Halftown v. Showtime Networks, Inc., et al. case provides some sort of a roadmap for how a defamation or libel action brought by West may go[13]. Here, the popular show Billions was alleged to have falsely portrayed the plaintiff by showing them to have bribed a public official, been involved in an illegal casino deal, and participated in blackmail[14]. However, the plaintiff’s claim was dismissed by the trial court and the decision was affirmed upon appeal, which does not bode well for West’s potential claim[15]. There is, however, an important distinction that makes West’s case more compelling. Mr. West is a real person who was specifically portrayed in Winning Time, as opposed to the character in Billions not being able to be shown as “so closely akin” to the plaintiff in that case, which is the standard the court used in their reasoning which ended with dismissal[16]


HBO’s defense will likely center around the disclaimer they place at the beginning of every episode, stating “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.”[17] The explicit mention of modification, and the lack of mentioning a based-on-a-true story or documentary nature of the program will likely shift the burden to West, putting the onus on him to prove these modifications have caused him harm and their intent was to accurately portray him as he was during this period of time, and that deviation from the accurate portrayal is actionable. [18]


In sum, West’s developing issue with HBO will be interesting to track because it will aid in setting the line where extrapolating “true stories” in the name of entertainment crosses into defamation, and could dictate where networks will be able to take their shows in terms of character presentation and the amount they may deviate from the true story they base a show on. The result here will determine whether the aggrieved West will be limited to Pippen-esque public exhibits of dissatisfaction, or if West and his attorney will have legal actions at their disposal to compel the network to retract the negative portrayal.



References

[1] https://variety.com/2022/tv/news/jerry-west-winning-time-demands-retraction-1235236494/ [2] Scottie Pippen, Scottie Pippen on Michael Jordan in The Last Dance: “He Couldn’t have Been More Condescending if He Tried”, GQ (November 8, 2021),https://www.gq.com/story/scottie-pippen-unguarded-book-excerpt [3] Id. [4] Athletic Staff, HBO Series ‘Winning Time’ ruffling feathers over portrayal of Jerry West, The Athletic (March 9, 2022), https://theathletic.com/news/hbo-series-winning-time-ruffling-feathers-over-portrayal-of-jerry-west/ogY9OrZkRtCO/ [5] https://www.hbo.com/winning-time-the-rise-of-the-lakers-dynasty [6] David Roth, The Absurdity of the Righteous Fury over ‘Winning Time’, Defector (May 10, 2022), https://defector.com/the-absurdity-of-the-righteous-fury-over-winning-time/ [7] J. Kim Murphy, Jerry West Demands Retraction for ‘Deliberately False’ Portrayal in HBO’s Winning Time’ Variety (April 19, 2022) https://variety.com/2022/tv/news/jerry-west-winning-time-demands-retraction-1235236494/ [8] Bill Oram, ‘A Total Miscategorization’: Portrayal of Jerry West in HBO’s ‘Winning Time’ Sparks Criticism, The Athletic (March 9, 2022) https://theathletic.com/3172381/2022/03/09/a-total-mischaracterization-portrayal-of-jerry-west-in-hbos-winning-time-sparks-criticism/ [9]Samantha Bergeson, Jerry West Threatens Legal Action Against HBO’s ‘Winning Time,’ Ready to Go to Supreme Court, IndieWire (April 27, 2022) https://www.indiewire.com/2022/04/jerry-west-legal-action-hbo-winning-time-1234720103/ [10] Id. [11] Id. [12] Murphy, supra. [13] Hodgson Ross LLP, New Ruling Clarifies Defamation Law Involving Portrayal of People in Fictional Television Shows and Movies, JDSupra (March 1, 2021) https://www.jdsupra.com/legalnews/new-ruling-clarifies-defamation-law-8975130/ [14] Id. [15] Id. [16] Id. [17] https://www.hollywoodreporter.com/tv/tv-news/hbo-responds-lakers-show-winning-time-criticism-exclusive-1235135228/ [18] Id.