Lawyer Sues Producers of The Wolf of Wall Street for $25 Million
Producers of The Wolf of Wall Street are being sued by Andrew Greene who claims his privacy and publicity rights are violated because of the unauthorized use of his likeness in the Rugrat character.
The creators of “The Wolf of Wall Street” have much to anticipate this awards season. The film was nominated for two Golden Globes, with Leo snagging the award for Best Actor, and is currently nominated for five Academy Awards. Despite the accolades, the film’s producers are going to have to deal with another suit other than the one they wear on the red carpet. On February 18th, Paramount Pictures, Red Granite, Skelia Productions, and Appian Way, collectively “the producers” of the multi-nominated film, were slammed with a federal lawsuit by a Mr. Andrew Greene in the Eastern District of New York.
If you could look past Leonardo DiCaprio’s stellar performance, and make it through the three-hour parade of debauchery, illegal drugs, and prostitutes, then you may have noticed a particular character named Nicky “Rugrat” Koskoff. He was “the smartest of the bunch,” and he “actually went to law school.” Otherwise, he was known as the guy who “wore a piece of shit hairpiece.” Mr. Greene is perturbed because he alleges the character Rugrat, in all his corrupted glory, is a likeness of his own self. The complaint alleges defamation, a violation of his privacy rights, as well as a violation of his right of publicity. The success of Greene’s claims ride on whether or not he can establish that movie was of and concerning him, that he was named, or if he is readily identifiable as the Rugrat character.
In real life, Mr. Greene was indeed with Stratton Oakmont from 1993 to 1996, which is part of the time period in which the film takes place. Greene was head of the firm’s corporate finance department and a member of the Board of Directors. He attended California Western Law School in San Diego from 1986 to 1990, and is an inactive member of the State Bar of California. He also passed the New York State Bar Examination. Poignantly, at all times relevant to the complaint, Mr. Green wore a toupee.
From the similarity of these facts alone, if one knew the plaintiff before the production of the movie, they would likely find the Rugrat character to be a semi-accurate portrayal of Mr. Greene. However, let us remember that this is a movie. Everyone knows that filmmakers exaggerate real life stories, right?
This may be true most of the time, but Mr. Greene made a clever note in his complaint. The motion picture is adapted from a 2007 memoir written by Jordan Belfort also entitled “The Wolf of Wall Street,” which purports to be a true story. However, in the memoir, Mr. Greene is referred to by his legal full name, Andrew Todd Greene, or the shortened name, Andy Greene or Andy, and the nickname “Wigwam.”
This monkey wrench adds a complex twist to the analysis of Greene’s suit against the producers.
Consider Greene’s first and second causes of action.
In his first claim, Greene alleges that the Defendants violated New York Civil Rights Law § 50. This statute provides that “a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait, or picture of any living person without having first obtained the written consent of such person … is guilty of a misdemeanor.” Assuming that Greene is readily identifiable as Rugrat in the motion picture adaptation, and knowing that the Defendants distributed the film worldwide, their conduct constitutes an unauthorized use of his personality for purposes of trade and commercial benefits.
Greene’s second claim is for violating his right of privacy by the act of the Defendants’ unauthorized commercial appropriation of his likeness. This is similar to the § 50 claim; the major difference being that the injury involves damage to one’s self-esteem and dignity, rather than damage to one’s reputation.
The most common defense to either cause of action is that the First Amendment protects the speech at issue (i.e., the film). This may be accomplished by proving the film is newsworthy or of public interest. A matter of “public interest” is construed broadly, and a work need not concern an of-the-moment current event to qualify. Considering that the Stratton Oakmont debacle was a notorious event of the 1990s, and that a memoir chronicling the event and key players was published, there is enough evidence to conclude that the events of the motion picture “The Wolf of Wall Street” are decidedly of public interest.
Yet, this handy public interest carve-out is not available to the Defendants if the work is substantially fictional, but still held out to be true. This means that if the creators of the motion picture are presenting the movie to be an honest adaptation of Jordan Belfort’s true memoir, but they took significant creative liberties to revamp the film treatment, then they have a problem.
To illustrate, the memoir mentions Andrew Greene in his capacity as Board Director and Head of Finance for Stratton Oakmont, and the book may contain some detail about rambunctious Board of Director meetings and outlandish closing bell celebrations. However, the movie’s producers may have exaggerated just how rowdy, amoral, and perverted Greene/Wigwam (personified as Rugrat) truly was.
Currently, not enough facts are available to make an accurate analysis of the claim. If the suit moves forward and the parties enter into discovery, maybe then there will be enough evidence to conclude how far the film’s producers may have stretched “the truth.”
Wigwam (or Greene’s) tactic in alluding to the memoir being a true story is to take away the producers’ greatest safeguard. The producers’ strongest defense is to claim that the movie is in fact a work of fiction. This is because fictional works are not lies, since there is a literary license to be inspired, comment upon, and reinvent a real person. Films, even as commercial speech, may be protectable.
It seems like a frivolous lawsuit if Greene seriously believes that he can overcome the First Amendment protections afforded to film. Even if Jordan Belfort’s memoir is completely true, and the adapted screenplay is similar to the memoir, it will be extremely difficult to prove a direct connection between Rugrat and Wigwam. Similarly-situated plaintiffs have tried and lost such cases. Compare to Polydoros v. Twentieth Century Fox, 79 Cal. Rptr. 2d 207 (Ct. App. 1997), concerning the ‘Squints’ Palledorous character in the 1993 movie “Sandlot.”
But Greene is not asking to stop the exhibition of the movie altogether. Rather, he is praying for a narrower injunction to halt the distribution of and recall all advertisements associated with the movie using his likeness. Advertisements, unlike film, are categorically commercial speech, and as noted, are not given strong First Amendment protection. The plaintiff’s argument may just work, unless the producers can prove that all of the movie posters and movie clips are “incidental” to a First Amendment protected use (i.e., the motion picture). Again, the odds of the defendants actually being forced to take all of their ads down are slim. The defendant in the aforementioned Polydoros case also escaped such an injunction.
Greene’s other request is even more overly ambitious. The $25 million demand for compensatory damages is just too big an ask. Of course, a jury may determine otherwise at trial. That is, if the case ever progresses that far.