Plaintiff Paul Brodeur, a well-known author, filed suit in California state court against the producers and distributors of the motion picture American Hustle, asserting claims for defamation, slander, and false light. The case is Paul Brodeur v. Atlas Entertainment, Inc., et al., Case No. B263379.
Mr. Brodeur’s claims were based on a single statement made by Jennifer Lawrence’s character, Rosalyn, who has an argument in the film with her husband regarding their new microwave oven. Rosalyn states that she read an article by Paul Brodeur that said that cooking food in microwaves takes all of the nutrition out of food. Mr. Brodeur alleged that this statement suggested to the movie audience that he made a scientifically unsupportable statement, thereby damaging his reputation.
The defendants moved to strike Mr. Brodeur’s complaint pursuant to California’s anti-SLAPP statute, California Code of Civil Procedure § 425.16(e). In ruling on an anti-SLAPP motion, the court engages in a two-step process. First, it decides whether the defendants have made a threshold showing that the challenged cause of action is one arising from a protected activity. If they succeed in meeting this threshold requirement, the burden then shifts to the other party to demonstrate a reasonable probability of prevailing on its claims, by showing that the complaint is both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.
Although the Los Angeles Superior Court denied defendants’ motion over a year ago, the California Court of Appeal reversed last week.
First Step: Did Defendants Make A Threshold Showing Of Protected Activity? YES
In a non-published decision, the appellate court determined that the anti-SLAPP statute applied because the statements made in the movie were made “in connection with a public issue or an issue of public interest” within the meaning of the anti-SLAPP statute. The court initially noted that, “it is beyond dispute that movies involve free speech.” Dyer v. Childress, 147 Cal. App. 4th 1273, 1280 (2007). The court also recognized that “any issue in which the public is interested” is an issue of “public interest” for purposes of the anti-SLAPP statute. Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008) (emphasis in original).
In reliance on Tamkin v. CBS Broadcasting, Inc., 193 Cal. App. 4th 133, 144 (2011) – a decision successfully argued by Andrew M. White and David E. Fink of Kelley Drye’s Los Angeles office – the appellate court agreed that there is a public interest “‘in the writing, casting and broadcasting’ of a popular television program.” Indeed, Tamkin held that that a screenwriter’s use of the plaintiffs’ real names in a screenplay was an act in furtherance of free speech rights because it “helped to advance or assist in the creation, casting, and broadcasting of an episode of a popular television show.” Id. at 143.
With regard to the statements made about Mr. Brodeur in American Hustle, the appellate court held the microwave scene plainly drew on an issue of public interest in the 1970’s – i.e., health hazards associated with exposure to microwave radiation – and that Mr. Brodeur was an integral part of that issue at the time. Although the court characterized American Hustle broadly as “‘a 21st century screwball farce about 20th century con men,’” and a film that “uses the reality of a late 1970’s FBI sting operation known as Abscam (which led to bribery convictions of a number of elected officials) as a ‘taking off point[,]’” the court rejected Plaintiff’s argument that the public-interest topic addressed in American Hustle is limited to the Abscam scandal. Accordingly, the court determined that Mr. Brodeur’s lawsuit fell squarely within the province of California’s anti-SLAPP statute.
Second Step: Did Plaintiff Show A Reasonable Probability Of Prevailing? NO
In examining Mr. Brodeur’s probability of prevailing on his defamation claim, the court found that the record was devoid of any evidence of whether he made the statement attributed to him in American Hustle. In any event, the Court found that the comments about Mr. Brodeur in the film are not reasonably susceptible of a defamatory meaning, particularly because the movie is a “farce,” and it opens with a caption stating “[s]ome of this actually happened.” Moreover, the character who utters the allegedly defamatory statements is consistently portrayed throughout the movie as “slightly unhinged” and “a font of misinformation.”
Because Mr. Brodeur failed to carry his burden of showing a probability of prevailing on his defamation claim, the remaining claims based on the same publication also failed. The Court therefore ordered the trial court to enter an order granting the motion to strike.
Although it took over a year to obtain this result, decisions like this one will continue to permit artists to take liberties with historic facts in creative works, particularly when those works are only loosely based on historic events. Indeed, the court expressly recognized that “‘[t]he creative process must be unfettered, especially because it can often take strange turns, as many bizarre and potentially offensive ideas are suggested, tried, and, in the end, either discarded or used. . . . . [¶] . . . We must not permit juries to dissect the creative process in order to determine what was necessary to achieve the final product and what was not, and to impose liability . . . for that portion deemed unnecessary. Creativity is, by its nature, creative. It is unpredictable. Much that is not obvious can be necessary to the creative process.’” Tamkin, 193 Cal. App. 4th at 144-45 (quoting Lyle v. Warner Brothers Television Productions, 38 Cal. 4th 264, 298 (2006) (conc. Opn. Of Chin, J.) The Brodeur opinion reinforces Tamkin and its progeny, thereby permitting artists to take creative liberties with their works of authorship.