Hi, I’m Eriq Gardner. 

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In today’s email: Does NBA legend Jerry West have a case against HBO over Winning Time? I’ll explain how Netflix factors in. And the Scientologists are waging one of the biggest court battles in the church’s history.

But first…

Hot on the Docket: Inclusion Rider Politics

“I have two words to leave with you tonight, ladies and gentlemen,” said Frances McDormand on stage at the 2018 Oscars. “Inclusion rider.”

With those words, nearly everyone in entertainment was discussing the possibility of achieving diversity in the creative ranks through contractual fiat. But while Endeavor C.E.O. Ari Emanuel soon called the adoption of inclusion riders “imperative” and Michael B. Jordan championed their use, the buzz died quicker than a cicada out of hibernation. Many production companies pursued specific inclusion targets and committed to outside consulting services. Nah, they eventually concluded. We’re good.

Now, without much fanfare, President Joe Biden has nominated to the Equal Employment Opportunity Commission the very attorney who helped create the “inclusion rider.” That would be Cohen Milstein partner Kalpana Kotagal, who, pending Senate confirmation, would become the vote that swings the civil rights agency towards the Democrats. That’s right, the same individual who has been pitching a solution to Hollywood’s White Male Problem is now set to have a powerful seat at this workplace regulator. In recent years, the commission has investigated (but done little) about gender discrimination in entertainment. Maybe that’ll change? 

Kotagal has signed a standard ethics agreement pledging to avoid conflicts of interest, and this past week, she made a financial disclosure (read here) that reflects, among other things, unspecified compensation she’s earned advising Matt Damon and Ben Affleck’s Pearl Street Films, plus Color of Change, which helped the Grammys adopt an inclusion rider. But government ethics experts tell me they don’t expect she’ll be held back much by this activity. She hasn’t signaled how she’ll use her time as a commissioner, but her deep familiarity with the industry is making some insiders nervous about the thought of heightened regulation. It also should be noted that she was one of the advocates who pushed lawmakers earlier this year to end forced arbitration in sexual assault and harassment cases. Judges and regulators may soon be interpreting that new law.

Bill O’Reilly’s Waiting Game

This week, a video went viral showing former Fox News host Bill O’Reilly becoming irate after his flight to Turks and Caicos was delayed. Meanwhile, Andrea Mackris has been waiting seven months to get a court hearing so that she may talk publicly about her allegations of sexual harassment against him.

It’s become axiomatic that prior restraints of speech under the First Amendment are not allowed. And yet, when Mackris was scheduled to go on ABC’s The View last July, O’Reilly rushed to court to enforce the confidentiality provision of a 2004 settlement agreement with his former producer. A New York judge entered a temporary restraining order, and Mackris’ TV appearance was canceled.

Amazingly, and without explanation, Judge Randy Sue Marber has yet to schedule any follow-ups, despite repeated requests from Mackris’ attorney, most recently on April 11.

Inside HBO’s Lakers Headache

NBA legend Jerry West is demanding a retraction over Winning Time and is hinting at a lawsuit. He’d probably lose, but an industry-shaking upset could depend on… Netflix.

In Hollywood, there’s a market for peace of mind. The product is called “life rights,” which unlike copyrights, trademarks, and patents, is not recognized by any specific statute. Life rights are really just a promise not to sue over a movie or TV show. Plus, people who sell life rights might offer some cooperation on the publicity front. But it’s really not legally necessary to buy these rights. Again, it’s for peace of mind. It can be a shakedown for agents who represent the famous, the accidentally and fleetingly famous (think rescued Chilean miners), and the notorious (e.g. Anna Sorokin).

Not all studios buy life rights before proceeding with a biopic. And some famous individuals have no interest—no matter the financial offer—in being fictionalized. Alas, occasionally, amid the sea of movies and TV shows “based on true events” (Hulu’s The Dropout and Pam & Tommy, AppleTV+’s WeCrashed, Showtime’s SuperPumped, to name a few recent standouts), someone threatens to sue.

That’s what NBA legend Jerry West has done in response to Winning Time: The Rise of the Lakers Dynasty. The unvarnished HBO series, about the “Showtime” era when Magic Johnson and Larry Bird entered the league and helped reignite interest in the NBA, has received good reviews and viewership is growing week-to-week. But there’s one constituency that loathes it—those who were actually there with the team. Indeed, Winning Time co-creators Max Borenstein and Jim Hecht fictionalize characters like owner Jerry Buss to the point of caricature. For a critical but non-legal take on the series, read this review by Kareem Abdul Jabbar himself.

West, the former star player who later became the Lakers’ general manager, is particularly incensed. In a letter addressed to HBO, Warner Bros. Discovery C.E.O. David Zaslav, and producers Adam McKay and Kevin Messick (read here), West’s attorney Skip Miller writes, “You have perpetrated an egregious wrong on a good and decent man and have harmed him in the process. This should never have happened; and by issuing a retraction, you can ameliorate some of the harm you have caused.” West specifically objects to how Jason Clarke’s characterization portrays him as an “out-of-control, intoxicated rage-aholic” and a “vulgar and unprofessional bully,” which, according to the stern letter and testimonials from those who knew him, is “the polar opposite of the real man.”

That might be so, but if broad brushstrokes, discolored as they may be, were enough to paint over the First Amendment, we would never get a chance to see an acclaimed movie like The Social Network (Mark Zuckerberg) or a TV series like The Crown (the British royals). A Ninth Circuit Court of Appeals ruling six years ago concerning Oscar winner The Hurt Locker confirmed that storytellers get to “take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art.” Even if there are aspects that are “unflattering,” that’s not enough to make these stories legally suspect. For someone to prevail, there must be elements that are “provably false” or a portrayal that puts the real-life individual “in a false light that would be highly offensive to a reasonable person.”

Plus, even if a famous person can overcome those hurdles, that’s still not enough because these individuals are public figures who must establish “actual malice,” which is to say, knowledge of falsity or reckless disregard for the truth. West, an “83-year-old legend and role model”—his lawyer’s words—certainly qualifies as a public figure.

Jerry West’s Gambit 

Again, the legal deck is stacked for Hollywood creatives. Recent case law includes a notable opinion concerning Olivia de Havilland’s attempt to punish FX over Feud, Ryan Murphy’s series about Bette Davis and Joan Crawford. “[F]iction is by definition untrue,” noted the California appeals court. “It is imagined, made-up. Put more starkly, it is false. Publishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice.” As such, the appellate justices continued, public figures making a claim over a fictitious work must show the producers “intended to convey the defamatory impression.”

The de Havilland case sure looks likely to doom West’s gripe, especially considering how the actress similarly highlighted how she was a living legend only to be tarnished by made-up stuff that cast her in a vulgar light. Nevertheless, West has one faint hope, courtesy of Netflix. Three months ago, a California federal judge concluded that former Soviet chess grandmaster Nona Gaprindashvili had established a prima facie case of defamation over The Queen’s Gambit, the Emmy-winning limited series about a female chess prodigy. U.S. District Court Judge Virginia Phillips’s Jan. 27 ruling didn’t generate enough attention. But if you read West’s retraction demand again, its significance is obvious. His attorney references the Gaprindashvili decision three times and includes a full copy of the 25-page order.

Notably, Queen’s Gambit is completely fictional. Well, except it is set in the Cold War era of the 1960s. And at one brief moment during the show’s exciting last episode, a radio announcer attempts to put the main character’s accomplishments in perspective: “The only unusual thing about her, really, is her sex. And even that’s not unique in Russia. There’s Nona Gaprindashvili, but she’s the female world champion and has never faced men.”

Most viewers probably didn’t even realize this was a real-world reference, but Gaprindashvili heard it and was aghast. She had faced men in tournaments—and beat them, including 28 male players at once in 1965. She thought the Queen’s Gambit remark was sexist and false. In the subsequent defamation suit, Netflix responded by arguing that no reasonable viewer would have understood the objectionable line to convey a statement of fact given that the series was fictional. Netflix also argued that viewers wouldn’t recognize the defamatory meaning without larger knowledge of competitive Soviet chess in the 1960s. 

The judge disagreed with Netflix, saying it was not insulated from liability. But what really stands out here, and what may give pause to those making future biopics, is how Judge Phillips treated the fail-safe issue of actual malice: Because Queen’s Gambit was based on a novel that included a line about how Gaprindashvili had faced male grandmasters, the judge said the show’s creator either knew the truth and ignored it, or deliberately decided not to learn what might confirm the falsity of the screenplay.

Alas, that precedent is trouble for HBO, and potential ammo for Jerry West, because Winning Time is based on a book by Jeff Pearlman titled, Showtime: Magic, Kareem, Riley, and the Los Angeles Lakers Dynasty of the 1980s. If West does sue HBO, under this new Gaprindashvili standard, he’ll highlight how the show has departed from its source material to tarnish him.

Meanwhile, Netflix has already filed an appeal to the Ninth Circuit in the Gaprindashvili case, with the opening brief due next month and oral arguments likely to come later this year. I imagine this is the type of appellate showdown that will attract amicus briefs from outsiders, including studios aiming to protect the ever-popular genre of dramatizations of true stories. A loss might mean forgoing these projects, or at least, engaging in the “life rights” market for peace of mind. 

Decision of the Week

Speaking of Netflix, in light of slipping subscriber numbers, the streamer has signaled it intends to do something about password sharing. The looming crackdown will likely employ technological rather than legal levers, but it’s nevertheless interesting that the development comes a few days after the Ninth Circuit issued an important opinion in HiQ Labs v. LinkedIn. This decision was ostensibly about “scraping” of public websites under the Computer Fraud and Abuse Act, but included a detailed analysis of what it means to access a protected computer without authorization. The decision was a defeat for LinkedIn, which had previously argued that this outcome would leave websites with the choice between being open to attacks or having to adopt password protection.

Scientology at SCOTUS?

The U.S. Supreme Court loves religious liberty cases. Conservative justices like Clarence Thomas and Samuel Alito have shown they’ll tolerate offensive activity so long as it is in the name of faith. So what would the high court do when the Free Exercise Clause of the First Amendment, which protects a citizen’s right to practice a religion, is wielded against religious rituals? I’m told that the Church of Scientology is strongly considering giving the justices an opportunity to review such a case. 

The dispute emanates from allegations of rape against actor Danny Masterson. According to several women now suing the Church of Scientology, when they reported Masterson to police, Scientology quickly moved in to protect its celebrity member through intimidation. (Masterson has denied allegations against him.) Scientology agents allegedly surveilled them, hacked their email, killed their pets, ran them off the road in vehicles, poisoned trees in their yard, and on and on. (Scientology denies the allegations.) To claims of invasion of privacy and intentional infliction of emotional distress, Scientology demanded the case be moved to its internal system for handling grievances pursuant to arbitration agreements these women signed when enrolling in Scientology in the first place. 

In January, a California appeals court reversed a Los Angeles judge by siding with the women’s attempts to avoid a Scientology tribunal. The opinion—an unpublished one, meaning it’s not meant to have precedential value (but nevertheless might be cited in future cases)—concludes that the First Amendment includes an inalienable right to leave a faith, and such religious freedom must override an irrevocable agreement that waives access to the U.S. civil justice system. 

Scientology is arguing the ruling flouts judicial deference for arbitration and imperils all religions, and specifically its ability to determine how it may accept members and govern itself. That wasn’t enough to sway the California Supreme Court, which took a pass on reviewing the lower court’s decision this past week. The next step for Scientology would be a cert petition to the U.S. Supreme Court, where there indeed could be greater interest. 

On the Docket…

Disney may go to court over Florida’s decision to dissolve the self-governing district for Disney World. Here’s a good thread from a local reporter about what the repeal actually means… The controversial bankruptcy of InfoWars is getting the attention of the Justice Department… The State of New Mexico’s Occupational Health and Safety Bureau has released a summary of its investigation into Rust, the Alec Baldwin movie that turned tragic with a gun shooting… A new law in the European Union targets hate speech and disinformation on big tech platforms… An extension of the copyright term by two decades was slipped into Canada’s proposed federal budget… And Johnny Depp v. Amber Heard isn’t the only celebrity defamation trial ongoing at the moment. Blac Chyna is suing the Kardashian family for allegedly ruining her reality TV career by badmouthing her to E! Network executives. Kris Jenner testified she didn’t have that “influence.”

FOUR STORIES WE’RE TALKING ABOUT