District court rejects libel lawsuit filed against Paramount Pictures Corp., Red Granite Pictures Inc. and Appian Way LLC over the film “The Wolf of Wall Street,” finding that real-life attorney was not defamed by fictional character that plaintiff claimed resembled him, because plaintiff cannot show that defendants acted with actual malice in making false statements of or concerning defendant.
Andrew Greene, the former head of corporate finance and attorney for Stratton Oakmont, the infamous financial firm that was featured in the film “The Wolf of Wall Street,” sued Paramount Pictures and others involved in the creation and distribution of the film for invasion of privacy and libel per se. Nicky “Rugrat” Koskoff is a character in the film who, like Greene, wears a toupee, has a nickname that references his toupee, is a lawyer involved in corporate finance and was a childhood friend of the firm’s founder. Since the film is based on real events, Greene alleged that the similarities led audiences to believe that the Koskoff character portrays him and that numerous scenes in the film (for example, where Koskoff is partying with prostitutes, doing illegal drugs and shaving a woman’s head), defamed him. The court dismissed all but one of Greene’s claims — his public-figure libel claim — which required that he demonstrate by clear and convincing evidence that defendants acted with actual malice.
At the outset, the court’s summary judgment opinion rejected plaintiff’s responses to defendants’ statements of facts due to procedural deficiencies that amounted to “commentary” without citations to admissible evidence. Under New York law, to recover for libel, a plaintiff must establish (1) a written defamatory factual statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability. The court cited the Ninth Circuit to avoid what some courts have called “automatic actual malice,” which would occur if courts literally applied the actual malice test to statements that appear to express facts but are intended to be outrageous parodies expressing an opinion or, as here, a fictional character.
Since the film is a fictionalized dramatization of real events and due to conflicting contentions about who the Koskoff character represented in real life, the court explained that the actual malice inquiry “collapses into whether the defendant knew or acted with reckless disregard for whether the portrayal of the character would be ‘of and concerning’ the plaintiff.” The court held that even if there were issues of fact regarding whether the Koskoff character is “of and concerning” Greene, his libel claim would fail because he did not introduce evidence that defendants acted with actual malice when making those statements. The court reasoned that Greene did not meet his burden of demonstrating actual malice because of “(1) the fictionalized nature of the Movie; (2) the undisputed facts that the Koskoff Character is a composite of three people and has a different name, nickname, employment history, personal history, and criminal history of the Plaintiff; (3) the Movie’s disclaimer; (4) evidence of each Defendant’s subjective understanding that no real person was portrayed – or defamed – by the Koskoff Character; and (5) the lack of evidence to the contrary.”
Summary prepared by Jonathan Zavin and Peter Pottier