Cayuga Nation and Clint Halftown v. Showtime Networks, Inc., Brian Koppelman, Andrew Ross Sorkin, and David Levien, No. 157902/2019 (N.Y. Sup. Ct.) Decision granting dismissal entered July 17, 2020.
The Cayuga Nation and tribal leader Clint Halftown sued the creators of Showtime Networks drama “Billions” in defamation, alleging that a female character sharing the same name as Halftown was shown to have engaged in illegal conduct. The court noted that the Cayuga Nation, as sovereign, could not sue for defamation. Rather than defamatory content, the fictional Jane Halftown was not shown to be engaged in criminal activity. Moreover, the court concluded, there was no likelihood that the character in the show, which published a statement in the end credits noting its status as fiction, would be perceived to be the living Clint Halftown.
To be defamatory, a statement must be “of and concerning” and individual and be recognized or reasonably be interpreted as such. This is a question of law but where a work is fiction, a court must search for “similarities and dissimilarities” to see whether someone who know the plaintiff would know the plaintiff was being portrayed.
Consideration might be given to similar name, physical characteristics, family, history, and activities, including recreational activities.
As libel by fiction is counter-intuitive, requiring denial of defamatory material while asserting similarities with the fictional character, more than superficial similarities must be shown, such that one who knows the plaintiff would recognize the plaintiff in the fictional character.
This cannot be established where the real and fictional characters are, as here, of different genders, there is no history of the plaintiff’s involvement in land deals, and no engagement with novel voting methodologies.
That the real and fictional characters have the same last names and occupations is superficial. A viewer would not be misled, and the closing assertion that the show is fictional only underscored the show’s nature.
Plaintiffs’ trade appropriation claim failed because the statute applies to persons, not sovereigns, and concerns advertising and trade, not fiction.
Plaintiffs have appealed the order of dismissal in its entirety.