Greene v. Paramount Pictures Corp.Greene v. Paramount Pictures Corp.
BACKGROUND
I. Factual Background
Familiarity with the Court's September 30, 2015 Memorandum and Order (the "September 2015 Order"), see generally Greene v. Paramount Pictures Corp.,
A. Plaintiff's 56.1 Responses
Initially, the parties dispute whether the Court should accept Plaintiff's Responses to Defendants' 56.1 Statement, since they do not comply with Local Civil Rule 56.1's requirements (1) that they respond, in correspondingly numbered paragraphs, to each numbered paragraph in Defendants' Statement and (2) that each statement be followed by a citation to admissible evidence. Local Civ. R. 56.1(b) & (d) ; (see Defs.' Br., Docket Entry 73, at 2-4; Pl.'s Opp., Docket Entry 75, at 7-8.)
Plaintiff submitted his first non-compliant Rule 56.1 Response in advance of a pre-motion conference in this matter. (Pl.'s 56.1 Resp., Docket Entry 69-2.) At the December 18, 2017 conference, the Court highlightеd the Response's deficiencies and directed Plaintiff to file a compliant
At the pre-motion conference ... Plaintiff's Counsel noted--quite accurately--that the vast majority of statements included in the multiple declarations and documentation [cited in Defendants' Rule 56.1 Statement] were irrelevant to the case-at-hand. The Court hеld that it was within the purview of the Court to determine the relevance of the Defendants' assertions ... and provided a deadline for Plaintiff to file a revised Statement that matched paragraph-by-paragraph for the benefit of the Court's review as to which assertions are in contest....
....
Unfortunately, Defendants' 56.1 Statement was replete with superfluous and irrelevant assertions and materials seeking to prove the overall unethical, unprofessional and--in some instances--illegal conduct of Stratton Oakmont.... Plaintiff's allegations in the Complaint and assertions throughout this litigation have always beеn that he did not behave in the same fashion as the firm gained a reputation for....
(Pl.'s Opp. at 7-9.) Accordingly, despite Plaintiff's clear understanding of Local Civil Rule 56.1 and this Court's directive, he disregarded both and instead filed what amounts to a commentary--without citations to admissible evidence--on Defendants' evidence. (See Pl.'s Am. 56.1 Resp.) The Court thus disregards Plaintiff's Responses and deems the facts in Defendants' 56.1 Statement to be admitted.
B. Stratton Oakmont, the Memoir, and the Movie
From 1993 to 1996, Plaintiff served as a director, general counsel, and head of the corporate finance department at Stratton Oakmont, Inc. ("Stratton Oakmont"). (Defs.' 56.1 Stmt. ¶¶ 13, 51-52; Pl.'s Dep. 44:18-21, 64:5-12.) Stratton Oakmont was an infamous over-the-counter securities broker-dealer based in Long Island, New York that was subject to a host of disciplinary actions and charges involving, among other things, securities fraud and market manipulation. (Defs.' 56.1 Stmt. ¶¶ 10, 20.) Jordan Belfort, one of Stratton Oakmont's cofounders, eventually pled guilty to securities fraud, money laundering, and related charges, for which he served prison time and was ordered to pay over $100 million in restitution. (Defs.' 56.1 Stmt. ¶¶ 24, 26, 28; U.S. v. Belfort, et al., Case No. 98-CR-0859, J., Docket Entry 135.) In 2007, Belfort published The Wolf of Wall Street, a memoir chronicling his time operating Stratton Oakmont and overseeing its securities fraud (the "Memoir"). (Defs.' 56.1 Stmt. ¶ 2); Greene I,
Plaintiff is prominently featured in the Memoir. It identifies Plaintiff by his full name, Andrew Greene, and a nickname, "Wigwam"--a reference to the toupee he wore during his time at Stratton Oakmont. (Memoir pp. 1-224, Belfort Decl. Ex. 1 Pt. 1, Docket Entry 73-3, at 65.) Plaintiff is described as Stratton Oakmont's lawyer
The Movie--starring Leonardo DiCaprio and directed by Martin Scorsese--is based on the Memoir and was released in the United States on December 23, 2013. (Def.s' 56.1 Stmt. ¶¶ 2, 5.) As stated in the closing credits, the Movie purports to be "based on actual events"--that is, the story told in the Memoir. (See Movie; Defs.' 56.1 Stmt. ¶ 90.) For the most part, the Movie's screenplay tracks the Memoir's storyline. However, as the closing credits еxplain, the Movie contains some dramatic elements. While purporting to be "based on actual events," the credits indicate that some of the events depicted are fictional and that some of the characters have fictional names or are composites of real-life individuals depicted in the Memoir. (See Movie, Closing Credits ("[C]ertain characters, characterizations, incidents, locations and dialogue were fictionalized or invented for purposes of dramatization."); Defs.' 56.1 Stmt. ¶ 90.) The closing credits further include a disclaimer that "[w]ith respect to such fictionalization or invention, any similarity to the name or to the actual character or history of any person ... or any product or entity or actual incident, is entirely for dramatic purposes and not intended to reflect on an actual character, history, product or entity." (Movie, Closing Credits; Defs.' 56.1 Stmt. ¶ 90.)
C. The Koskoff Character
Plaintiff claims that a character from the Movie, Nicky Koskoff ("Koskoff" or the "Koskoff Character")
Generally, the complained-of scenes are dramatized versions of events discussed in the Memoir. For instance, the Memoir describes drug use and prostitution activity in the boardroom, (e.g., Memoir at 54); criminal activity, including the arrest of Gary Kaminsky, the Chief Financial Officer of a Stratton Oakmont client, (Memoir at 121, 137-48; Memoir Pt. 2 pp. 225-End, Docket Entry 73-4 at 339), and Plaintiff's role in a transaction arising out of the
While Koskoff and Plaintiff share certain traits, Koskoff was created as a "composite character" inspired by three individuals discussed in the Memoir, not as a carbon copy of Plaintiff. (Defs.' 56.1 Stmt. ¶¶ 73-74.) Specifically, Koskoff incorporates elements of Plaintiff, Elliott Loewenstern, and Gary Kaminsky, as Belfort portrayed them.
Individuals who saw the Movie and who knew Plaintiff while he worked for Stratton Oakmont testified that they believed Koskoff was a depiction of Plaintiff because, like Plaintiff, he wore a toupee and was a lawyer involved in corporate finance at the firm. (Pl.'s 56.1 Counterstmt. ¶ 103.) Specifically, Howard Gelfand, a Stratton Oakmont employee, (Gelfand Dep., Cox Decl. Ex. 42, Docket Entry 73-51, 10:2-11:5), testified that he knew Koskoff referred to Plaintiff because "he was a corporate finance guy and he was wearing a toupee," (Gelfand Dep. 37:17-20). Neil Kaufman, a securities lawyer who worked on an initial public offering underwritten by Stratton Oakmont, (Kaufman Dep., Cox Decl. Ex. 46, Docket Entry 73-55, 13:18-25), testified that it was obvious that Koskoff was a portrayal of Plaintiff because they were both in-house lawyers at Stratton Oakmont with the similarly punned nicknames of "Rugrat" and "Wigwam," (Kaufman Dep. 50:17-51:5). Norman Arnoff, who represented Stratton Oakmont in connection with securitiеs arbitrations and state regulatory matters, (Arnoff Dep., Cox Decl. Ex. 47, Docket Entry 73-56, 12:14-13:23), testified that he believed Koskoff identified Plaintiff because "[o]ne, [ ] the wig[, a]nd two[,] because of the involvement ... in the [initial public offerings] in the business aspect of Stratton in the [M]ovie," (Arnoff Dep. 61:9-18). Ross Portenoy, who was friends with Plaintiff and Belfort and did printing work for Stratton Oakmont, (Portenoy Dep., Cox Decl. Ex. 48, Docket Entry 73-57, 10:13-15:10), testified that he believed Koskoff was Plaintiff because "the hairpiece, his
Notably, each of these individuals also testified that they did not associate Plaintiff with the defamatory aspects of Koskoff. (Defs.' 56.1 Stmt. ¶ 88.) Gelfand testified that he did not believe that Koskoff's actions mirrored Plaintiff's, because while the typical Stratton Oakmont employee "was a drug monger, prostitute monger," Plaintiff "wasn't particularly that guy." (Gelfand Dep. 44:20-45:5; see also Gelfand Dep. 64:12-22.) According to Kaufman, "the depiction of [Koskoff] in the [Movie] was a ... gross distortion of" Plaintiff. (Kaufman Dep. 42:11-24.) Arnoff testified that he recognized that not every character from the Movie "matche[d] somebody 100 percent," (Arnoff Dep. 62:3-6), and that while Koskoff resembled Plaintiff more than anyone else at Stratton Oakmont, Koskoff was "an extreme caricature" of Plaintiff (Arnoff Dep. 51:13-21; see also Arnoff Dep. 51:22-52:12 ("There were similarities [between Koskoff and Plaintiff] ... but I don't think it was identical.") ). Plaintiff "was one of the good guys." (Arnoff Dep. 61:19-62:20.) Portenoy testified that he believed that Koskoff made a "mockery ... of [Plaintiff] ... [by] mak[ing him] look like a drug addict, partying and having sex with all these girls, doing the things he was doing in Stratton Oakmont, when I know for a fact that [Plaintiff] was the one that dealt with the regulations, that was trying to keep that firm going, and all of a sudden [Belfort] is mocking him, making him look like this character, and that is definitely not who [Plaintiff] was." (Portenoy Dep. 44:8-24; see Portenoy Dep. 90:12-17 ("[Plaintiff] was depicted as a character that absolutely did not--was not the [Plaintiff] that I knew that worked at Stratton Oakmont.").) Finally, Rettinger testified that she did not recall anything about what Koskoff did in the Movie, but only that he was Belfort's sidekick. (Rettinger Dep. 29:3-14.)
PROCEDURAL HISTORY
Plaintiff commenced this action on February 18, 2014, asserting two causes of action for invasion of his privacy under New York Civil Rights Law § 51, one cause of action for invasion of his privacy under New York common law, and two causes of action for libel per se--one alleging actual malice and the other alleging negligence. Greene I,
In the September 2015 Order, the Court dismissed Plaintiff's invasion of privacy claims with prejudice.
Defendants moved for summary judgment on February 5, 2018; Plaintiff opposed the motion on March 5, 2018, (Pl.'s Oрp.); and Defendants filed a reply brief in further support of their motion on March 19, 2018. (See Defs.' Br.; Pl.'s Opp.; and Defs.' Reply, Docket Entry 76.)
DISCUSSION
I. Legal Standard
Summary judgment will be granted where the movant demonstrates that there
The movant bears the burden of establishing that there are no genuine issues of material fact. Gallo v. Prudential Residential Servs., L.P.,
II. Defamation
" 'The law of defamation serves to protect an individuаl's right to one's reputation.' " Kavanagh v. Zwilling,
A. Defendants' Motion
Defendants argue that Plaintiff cannot recover because (1) the portrayal of Koskoff is not "of and concerning" Plaintiff (Defs.' Br. at 19-23); (2) even if Koskoff is a portrayal of Plaintiff, that portrayal is substantially true (Defs.' Br. at 14-18); (3) Defendants did not act with actual malice (Defs.' Br. at 8-13); (4) most alleged instances of libel per se are not actionable (Defs.' Br. at 23-25); and (5) Plaintiff did not suffer special damages (Defs.' Br. at 25). Plaintiff contends that (1) the Koskoff Character is "of and concerning" Plaintiff (Pl.'s Opp. at 15-17); (2) Defendants acted with actual malice (Pl.'s Opp. at 10-15); (3) Plaintiff's claims are actionable per se (Pl.'s Opp. at 17-19); and (4) Plaintiff suffered special damages (Pl.'s Opp. at 19-20).
For the reasons that follow, even assuming there are issues of fact regarding whether the Koskoff Character is "of and concerning" Plaintiff, his libel claim fails because hе has not introduced evidence
B. Actual Malice
1. Standards
The standard of fault required to find a defendant liable for defamation varies depending on the status of the plaintiff. As a federal constitutional matter, if the plaintiff is a "public figure," he "must demonstrate by clear and convincing evidence that the defendant acted with 'actual malice.' " Biro v. Conde Nast,
"[A]ctual malice does not simply connote ill will or spite; rather it is 'a term of art denoting deliberate or reckless falsification.' " Biro,
In the context of a composite or fictional character, the actual malice inquiry is intertwined with whether there was a false statement "of and concerning" the plaintiff. Here, for example, Defendants combined aspects of Plaintiff and others in creating the Koskoff Character: Koskoff shared sevеral of Plaintiff's characteristics but engaged in actions carried out by others--for instance, Kaminsky's trip to Switzerland and arrest in Florida. (Defs.' 56.1 Stmt. ¶ 75.) Therefore, if Koskoff is "of and concerning" Plaintiff, then certain aspects of Koskoff are false as to Plaintiff, and Defendants acted with knowledge of that falsity. If Koskoff is not "of and concerning" Plaintiff, however, then any statement about that character is not false, and thus, not knowingly false. In other words, under a literal application of the test, actual malice is "automatic" if the character is "of and concerning" Plaintiff. See New Times, Inc. v. Isaacks,
Courts have recognized a similar tangling of elements in the analogous contexts of satire and parody, where statements that appear to express facts are instead intended "as outrageous parodies or caricatures expressing an opinion." See Dworkin v. Hustler Magazine Inc.,
Similarly, the Supreme Court of Texas noted that a literal application of the actual malice test in the satire context would result in " 'automatic actual malice' ... because the author always knows the publication contains false statements of fact." New Times, Inc.,
The actual malice inquiry for fictional characters can likewise be reframed to avoid "automatic actual malice." As discussed, a statement will only be false if the character is found to be "of and concerning" the plaintiff. Thus, determining whether the defendant acted with knowledge or reckless disrеgard in making a false statement is dependent on whether the defendant acted with knowledge or reckless disregard in making a statement "of and concerning" the plaintiff through the portrayal of a fictional character. This 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. See Rest. 2d of Torts § 564, cmt. f. ("The common law position was that if the recipient reasonably understood the communication to be made [of and] concerning the plaintiff, the defamer was subject to liability even though he was not at fault .... This position is now held to be in violation of the First Amendment to the Constitution. The Supreme Court holds that there must be intent [or] recklessness ... on the part of the defamer.").
2. Analysis
Defendants argue that there is no evidence that Red Granite, Paramount, or Appian Way acted with actual malice because they did not act with knowledge or reckless disregard for whether Koskoff would be perceived to be "of and concerning" Plaintiff. (Defs.' Br. at 8-13.) In response, Plaintiff contends that Defendants acted with reckless disregard of falsity by (1) failing to properly research aspects of the Memoir, (2) relying on Belfort in their due-diligence efforts, when Belfort "has admitted to regularly and pathologically lying to customers, colleagues, law enforcement and Courts," (3) engaging in "limited research regarding portrayals of real-life incidents and individuals," (4) lacking knowledge about legal clearance procedures, and (5) being unconcerned with factual accuracy. (Pl.'s Opp. at 10-15.) However, Plaintiff ignores Defendants' argument that they did not act with knowledge or recklessness in portraying him in the first place. And critically, while Defendants support their position with the evidence below, Plaintiff has not established a genuine issue of material fact by introducing or highlighting conflicting evidence.
Red Granite was the manager of TWOWS, LLC, the production company for the Movie. (Defs.' 56.1 Stmt. ¶ 107.) Christopher McFarland, a Producer and Vice Chairman of Red Granite, supervised the team that vetted the Movie to avoid violating third parties' reputational rights.
Pаramount acted solely as the Movie's distributor and did not produce or develop its screenplay. (Defs.' 56.1 Stmt. ¶ 91.) According to Lola Langner, Senior Vice President in Paramount's legal department, Paramount distributed the Movie based on: (1) "chain of title documents showing that the [Movie] was based upon an underlying non-fiction book"; (2) information from a Red Granite attorney that there had been no lawsuits brought against the Movie or Memoir, and that the only claim against the Movie or Memoir had come from an attorney representing Daniel Porush, Stratton Oakmont's former president; (3) an agreement pursuant to which thе Movie's producer and copyright owner, TWOWS, LLC, represented and warranted to Paramount that the Movie would comply with libel and slander laws; and (4) assurances that TWOWS, LLC had "conducted a detailed analysis regarding the compliance of the [Movie] ... with the laws pertaining to rights of ... defamation." (Langner Decl., Docket Entry 73-59, ¶¶ 2-8; see Defs.' 56.1 Stmt. ¶ 11.)
Appian Way's involvement in the Movie included persuading Warner Brothers to acquire the underlying motion picture rights and assisting in the initial stages of development, which led to the commitment by Martin Scorsese's production company, Sikelia,
In light of the above, even if Koskoff is a depiction of Plaintiff, the Court concludes that Defendants did not act with knowledge or reckless disregard for whether Koskoff was "of and concerning" Plaintiff, and thus, that they did not act with actual malice. Specifically, based on (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 than 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, Plaintiff cannot establish that Defendants "in fact entertained serious doubts as to the truth of [the] publication." See St. Amant,
CONCLUSION
For the foregoing reasons, Defendants' summary judgment motion (Docket Entry 73) is GRANTED and Plaintiff's libel claim is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED.
SO ORDERED.
Notes
Plaintiff also named Sikelia Productions, Inc. ("Sikelia") as a defendant, but pursuant to the Court's September 11, 2017 Memorandum and Order (the "September 2017 Order"), his claims against it were dismissed without prejudice for lack of subject matter jurisdiction. Greene v. Paramount Pictures Corp., No. 14-CV-1044,
The following facts are drawn from Defendants' Local Civil
The Court has reviewed the evidence underlying the propositions in Defendants' Statement to ensure that they are adequately supported. See Giannullo v. City of N.Y.,
The Koskoff Character was originally named "Andrew 'Wigwam' Cohen," reflecting Plaintiff's first name and nickname, but the producers changed the chаracter's name to "Nicky 'Rugrat' Koskoff." (Def.s' 56.1 Stmt. ¶ 76.) The choice of the new name is related to the fact that a producer's husband is named Nicky Koskoff. (Def.s' 56.1 Stmt. ¶ 76.)
Terrence Winter, who wrote the screenplay for the Movie, decided to combine these individuals into the Koskoff Character to conserve screen time and help avoid audience confusion. (Defs.' 56.1 Stmt. ¶ 74; Winter Decl., Docket Entry 73-67, ¶ 19.) According to Winter, Koskoff "needed to serve several functions, and since there were certain similarities among Loewenstern, [Plaintiff,] and Kaminsky, it became possible to create a composite fiсtional character inspired by those three people who would be helpful in my primary story-telling mission of telling [ ] Belfort's story from Belfort's point of view." (Winter Decl. ¶ 19.)
In full, the disclaimer provides:
While this story is based on actual events, certain characters, characterizations, incidents, locations and dialogue were fictionalized or invented for purposes of dramatization. With respect to such fictionalization or invention, any similarity to the name or to the actual character or history of any person, living or dead, or any product or entity or actual incident, is entirely for dramatic purpose and not intended to reflect on an actual character, history, product or entity.
(Defs.' 56.1 Stmt. ¶ 90.)
As discussed, Plaintiff's claims against Sikelia were dismissed in the September 2017 Order.