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District court grants defendants’ motion to dismiss invasion of privacy claims, holding that defendants’ film “The Wolf of Wall Street” did not use plaintiff’s actual name or image, and grants in part and denies in part defendants’ motion to dismiss defamation claims, holding that plaintiff failed to allege defendants acted with required gross negligence, but rejecting defendants’ argument that film’s allegedly defamatory character was not “of and concerning” plaintiff.
Andrew Greene, the Stratton Oakmont Inc. executive who allegedly inspired the character of Nicky “Rugrat” Koskoff in the 2013 film “The Wolf of Wall Street,” brought an invasion of privacy and defamation suit against Paramount Pictures Corp. and others involved in the production and distribution of the film. The defendants moved to dismiss the complaint.
The district court agreed to dismiss the right of privacy claims, in which Greene argued that the likeness between himself and Koskoff was so significantly similar that people recognized the character as him. The district court held that using a fictitious name or evoking certain characteristics of the person such that the person is identifiable, without literally using his or her name or image, is not actionable under New York’s statutory invasion of privacy law. Because the film did not use Greene’s real name or actual image, the film’s use of Greene’s likeness did not trigger the protections of New York’s statutory right of privacy law. In addition, the district court pointed out that New York does not recognize a common law right of privacy.
The district court also dismissed one of Greene’s defamation claims, which alleged that the defendants acted negligently as to the truth or falsity of the defamatory scenes in the film. Greene claimed that because people allegedly recognized the Koskoff character as him, the film’s negligent depiction of Koskoff committing crimes and engaging in depraved sexual and drug-related activities damaged his reputation. The district court noted, however, that a private figure complaining of defamation with respect to a matter that is “within the sphere of legitimate public concern” must establish that the alleged defamatory statement was published in “a grossly irresponsible manner.” Finding that the film’s story, which was based on true events, touched on a matter “warranting public exposition,” the district court dismissed the claim without prejudice because it only alleged that defendants acted with mere negligence. The district court sua sponte granted Greene leave to amend this cause of action to assert a libel claim based on gross negligence.
The district court refused to dismiss Greene’s libel claims based on a failure to plead the requisite “of and concerning” element of a defamation claim. Under New York law, where a plaintiff claims that he or she was defamed through the portrayal of a fictional character, the test to determine if that portrayal is “of and concerning” the plaintiff is “whether a reasonable person, viewing the alleged defamatory work, would understand that the character portrayed in the work was, in actual fact, the plaintiff acting as described,” the district court noted. This inquiry is fact-specific, requiring a search for the similarities and dissimilarities between the plaintiff and the fictional character. The defendants argued that the Koskoff character was not “of and concerning” Greene as a matter of law because Koskoff was a fictional composite of real-life people referenced in the memoir of Jordan Belfort, one of Stratton Oakmont’s co-founders, and was only superficially similar to Greene. However, the district court rejected the defendants’ argument, finding that, given the alleged similarities between Greene and Koskoff, and the public nature of Stratton Oakmont’s fraud, it was plausible that someone aware of Greene’s role at Stratton Oakmont could reasonably associate Koskoff with Greene.