If Jerry West Sued Over ‘Winning Time,’ Case May Face Uphill Battle –

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HBO’s Winning Time begins with a warning: “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.”

A model of this disclaimer seems in different films and exhibits primarily based on actual occasions. They’re meant to inform viewers that components of what they’re watching are true, whereas different components are dramatized or fully made up. But how are individuals supposed to inform the distinction, particularly when filmmakers have more and more blurred the road between fact and fiction for the sake of drama?

Jerry West says most viewers now imagine him to be what his legal professional known as an “out-of-control, intoxicated rage-aholic” primarily based on his portrayal in Winning Time, tailored from a e book by Jeff Pearlman that chronicles the rise of the Los Angeles Lakers dynasty within the Eighties. West, who served because the staff’s coach and basic supervisor throughout this period and is now an govt for the Los Angeles Clippers, demanded final week a retraction, apology and unspecified damages for the “false and defamatory portrayal” in a letter to Warner Bros. Discovery, HBO and collection producers Adam McKay and Kevin Messick.

“The Jerry West in Winning Time bears no resemblance to the real man,” wrote his legal professional Skip Miller. “The real Jerry West prided himself on treating people with dignity and respect. Winning Time is a baseless and malicious assault on Jerry West’s character. You reduced the legacy of an 83-year-old legend and role model to that of a vulgar and unprofessional bully — the polar opposite of the real man.”

West takes difficulty with the collection’ characterization of him as a bully, borderline alcoholic and incompetent coach who pushed again on drafting Magic Johnson. In the present, Jerry Buss, proprietor of the Lakers, tells West in a single scene, “I used to drink a lot of bourbon. I switched to Vodka. You can smell it less. Just a tip.” West argues that the present defamed him, whatever the two sentence disclaimer that seems earlier than the primary episode of the collection.

West is true {that a} present can nonetheless defame somebody even when it has a disclaimer. If he chooses to sue, a part of the courtroom’s evaluation in whether or not the warning correctly served its supposed goal will probably be if the present represented itself as true and if viewers acknowledged his character within the collection as him.

Recent defamation instances on the usage of disclaimers don’t favor the producers of Winning Time. In a lawsuit from Georgian chess champion Nona Gaprindashvili, who says she was defamed in an episode of The Queen’s Gambit, a decide refused to dismiss the case as a result of she discovered that Gaprindashvili proved that she’s possible prevail on her defamation declare regardless of the looks of a disclaimer that the present was a piece of a fiction. The decide distinguished the usage of the disclaimer within the present from one which seems in The Laundromat, a Netflix film starring Gary Oldman concerning the Panama Papers. In that case, the courtroom discovered that no cheap viewer would imagine that the movie was making assertions of goal truth slightly than dramatizing occasions.

“Here, the Series includes a similar disclaimer, but the Line resembles one of those factual details incorporated into the Series for believability more than it resembles the main plot devices,” wrote U.S. District Judge Virginia Phillips. She concluded that the streaming big acted with a “reckless disregard” for the reality, rejecting arguments that it may well’t be sued for defamation of actual individuals in works of fiction.

Particularly troubling on this level in Winning Time is a scene that includes Buss through which he breaks the fourth wall in typical McKay style to inform viewers, “Jerry West, Head Coach of the Lakers, considered a true gentleman of the sport to everyone who does not know him.” Miller argues that the scene implies that the collection depicts the “real” West.

Alexander Rufus-Isaacs, a defamation legal professional who represents Gaprindashvili in her lawsuit in opposition to Netflix, stated the scene ought to bother the present’s producers as a result of it vouches for his or her portrayal of West.

“That would be a massive hurdle for the producers to overcome,” Rufus-Isaacs says. “When the screenwriter is being deposed, he’s going to have a very hard time denying that he meant for the audience to believe that he’s showing the real Jerry West. That’s a very good fact for West’s side and very bad for the producers.”

He emphasizes that the creators of Winning Time didn’t add any composite traits to West’s character, like change his title, figuring out options or place on the Lakers, in order that viewers wouldn’t be misled into believing that the character was a real portrayal of the NBA Hall of Famer.

Media lawyer Daniel Novack agrees that the scene will probably be an issue for the creators of Winning Time in the event that they’re sued and the courtroom considers whether or not an affordable viewer would imagine that the present is a truthful account of occasions.

“You’re literally telling the audience that this is the real West,” Novack says. “When breaking the fourth wall, it’s basically them saying ‘Trust us. This is real.’”

In current years, there’ve been quite a few defamation lawsuits filed in opposition to the producers of docudramas for allegedly false and deceptive portrayals of characters and occasions. Disclaimers haven’t been discovered to have shielded them from legal responsibility in most of these instances.

Still, West will possible have a troublesome time popping out on high of his lawsuit, if he chooses to pursue one. This is as a result of defamation instances are notoriously tough to win for individuals within the public curiosity.

There are huge free speech protections permitting individuals to criticize elected officers and different public figures. Such individuals within the public curiosity face the next burden in defamation instances, having to show that the allegedly defamatory statements have been made with precise malice, outlined because the intent to hurt with the prior information that what was stated was really false. Mere negligence isn’t sufficient.

The customary has been the downfall of a number of defamation lawsuits, together with ones filed by Donald Trump, Sarah Palin and an individual who sued over his portrayal in The Wolf of Wall Street.

“A pleading that says he’s not like this isn’t good enough,” Novack says. “Where’s the smoking gun that [the showrunners] knew better? Where were they put on notice?”

West’s letter to the creators of Winning Time consists of statements from Lakers personnel difficult his depiction within the collection as unfaithful.

Charlene Kenney, govt assistant Lakers proprietor Jerry Buss for over 20 years, wrote: “I have watched the HBO show Winning Time and the character they portray as Jerry West is nothing like the man I knew. I never heard Jerry yell or scream at me or anyone. In fact, I never heard Jerry even raise his voice at the office. He was always a gentleman and he treated me and others within the Lakers organization with respect and professionalism. I also never heard Jerry West use swear words or curse words in the office. And I never witnessed Jerry throw or break anything in anger. I also never heard Jerry on a tirade or rant about anything. Lastly, I never saw Jerry drink alcohol at the office, nor did I ever see Jerry intoxicated at the office.”

Likely anticipating an precise malice protection, Miller emphasizes that the allegedly defamatory scenes of West’s temperament don’t seem in Pearlman’s e book. He factors to a longtime Lakers worker who refused to seek the advice of on the present due to its inaccurate portrayal.

Gary Vitti, who spent 32 years at head coach for the Lakers, stated the present “was a total mischaracterization of Jerry West.”

“You were on notice of the falsity, yet you still released Winning Time knowing it was false and misleading,” Miller wrote. “This is the epitome of malice.”

Kareem Abdul-Jabbar has additionally criticized the present for its “deliberately dishonest” depiction of West. So has Arn Tellem, vice chairman of the Detroit Pistons.

Rufus-Isaacs believes {that a} lawsuit from West may be one of many few instances to get previous dismissal as a result of Pearlman’s e book largely portrays West in a flattering mild. He says, “Unless the writer had good reason to believe the book is flawed, there’s a strong likelihood he wins on malice.”

As a part of the evaluation, the courtroom will take into account whether or not the present’s creators had sources who gave corroborating accounts for his or her portrayal of West. As lengthy as certainly one of them stated West could possibly be identified to behave like he did within the collection, that could be sufficient for the producers of Winning Time to flee a defamation declare.

While he doesn’t assume West ought to or will find yourself pursuing a lawsuit, Novack questions whether or not current docudramas have gone too far in blurring the road between fiction and actuality.

“They want to have all the benefit of the show being real but also want to heighten and dramatize it,” Novack observes. “Dramatization to me means turning the amp up from a six to an eight. If someone’s at a three, you can’t amp it up to 10. It’s a fine line. How do you do that without going too far?”

HBO didn’t reply to requests for remark.



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