Cayuga Nation Battles “Billions” at Showtime: Did Episode Constitute Actionable “Libel by Fiction”?

This was originally posted on the SGR Blog.

Did an episode of  “Billions” on Showtime defame Cayuga Nation and Clint Halftown? Their suit for defamation against Showtime Networks Inc., Brian Koppelman, Andrew Ross Sorkin and David Levien addressed that question.

The suit arose from allegedly defamatory depictions of Cayuga Nation and Halftown in the television series Billions which was broadcast by Showtime Networks Inc. Cayuga Nation and Halftown claimed that they were portrayed on the series as being involved in an illegal casino land deal, as well as bribery of a public official and blackmail. But acknowledged that, at the end of every episode in the series, a disclaimer was shown stating that the “events and characters depicted [in the show] are fictitious” and that “[a]ny similarity to actual persons, living or dead, or to actual events, is purely coincidental.”

Cayuga Nation was a sovereign Indian nation (one of six Indian nations known as the Haudenosaunee) recognized by the United States and New York State. And Halftown was a member of the Cayuga Nation Council as well as its federal representative. Koppelman was the co-creator and executive producer; Sorkin was the co-creator and a writer; and Levien was a writer and producer of the series.

In an episode that aired on May 5, 2019 and seen by an audience of approximately 761,000 viewers, the character of Chuck Rhoades, a former United States Attorney, was portrayed as “supporting a process identified [as] ‘blockchain-based mobile voting’ and propose[d] a pilot program to test the efficacy of this mobile voting for elections in New York.”  In an attempt to institute the mobile voting program, Chuck asked his father, Chuck Rhoades, Sr. , to introduce him to an Indian tribe identified in the episode as the “Cayuga Iroquois”, with which Rhoades Sr. was depicted to have had previous connections. Specifically, Chuck asked Rhoades Sr. to “juice [him] in with the tribe”, which Rhoades Sr. referred as “[his] casino Indians” and “[his] Indians”. The complaint asserted that the episode implied that Rhoades Sr. could “lend his and the ‘Cayuga Iroquois’s’ influence to the [MVP]”;  Cayuga Nation was “subject to [Rhoades Sr.’s] influence and even control”; and  Cayuga Nation and Halftown had been involved in “a casino land deal and an illegal revenue-sharing agreement.”

The episode also contained a scene in which Chuck spoke to a character identified as “council member Jane Halftown”. Although Jane was a female character, she was portrayed as a council member, such as Halftown, and even had “his exact and unique surname.” Jane asked Chuck why she should lobby the elections board on behalf of “the people who chiseled us on the land deal surrounding the casino?” Chuck then replied “[c]hiseled? I thought partnership was more—” to which Jane responded that Rhoades Sr. “has tasted the fruits of our tribe in a way that makes us disinclined to trust either him or you.” At that point, a young Native American mother appeared in the scene with a baby fathered by Rhoades Sr.

Chuck then told Jane that Rhoades Sr. would “sweeten [her] piece” on a land deal to “what [she felt] was fair.” Cayuga Nation and Halftown claimed claim that the dialogue explicitly set forth a “false and defamatory narrative that [Cayuga Nation] and [Jane] had previously been engaged in a casino land deal and an illegal revenue-sharing arrangement.”

Later in the episode, Jane, Chuck, and Rhoades Sr. were shown meeting with Hap Halloran, the commissioner of the election board, to persuade him to institute the MVP. Jane convinced Halloran to approve the MVP by stating “Don’t make me have my people put these [headdresses] on. Thirty of my compatriots in full regalia. Don’t make me give interviews about how you are refusing us the vote. Don’t make me stage a sit-in at your office.” In Jane’s presence, Chuck then hands Halloran an envelope containing airline tickets and hotel reservations for Halloran and his wife to vacation in Aruba. Cayuga Nation and Halftown claimed that Jane’s “participation in the activities depicted [in that scene] attribute[d] criminal conduct to Mr. Halftown.” Thus, the first cause of action charged Showtime with defamation per se.

In the second cause of action, Cayuga Nation and Halftown alleged that they were defamed them by portraying them as participants in an illegal land deal. And in the third cause of action, they claimed that their likenesses were misappropriated for the purposes of profit and marketability.

Showtime moved to dismiss the complaint, alleging that the Cayuga Nation was a sovereign nation and thus could not bring a defamation claim; the claims by Halftown must be dismissed because he was not defamed in the episode and the episode was not unmistakably about him; and the misappropriation claim must be dismissed as a matter of law.

In opposition, Cayuga Nation alleged that it was not barred from bringing a defamation suit because it was a governmental entity; the depiction of them in the episode was clearly defamatory insofar as it unmistakably portrayed Halftown and showed he and the Cayuga Nation committing the crimes enumerated in the complaint as well as participating in “an illicit land deal.”; and they stated a claim for misappropriation of likeness.

In reply, Showtime reiterated the argument that Cayuga Nation could not sue for defamation. Asserted that Cayuga Nation and Halftown were not defamed because “the [e]pisode can only reasonably be understood as showing how [Rhoades Sr.] duped Cayuga Nation into entering a bad land deal, impregnated a young [Cayuga] Nation member, leaving her alone to raise the baby, and how … Jane sought to rectify these wrongs while also obtaining access to voting for Cayuga Nation.” Argued that Jane was not shown to be complicit in Chuck’s payoff to Halloran, since only Chuck and Rhoades Sr. were involved in that act. And claimed that Halftown could not maintain a defamation claim because it was not alleged that the average viewer would understand Jane’s character as conveying actual facts about him.

The defamation claim by the Cayuga Nation was dismissed because the allegedly defamatory material was directed against a governing body and how it governed, rather than against its individual members. And the episode did not portray the Tribal Council members as individually corrupt or individually promoting a criminal enterprise.

In order to establish a prima facie case of defamation, Cayuga Nation and Halftown had to establish that the matter published was “of and concerning them”. Although it was not necessary for them to be named in the publication, they had to establish that the statement referred to them and that a person hearing or reading the statement reasonably could have interpreted it as such. That burden was not a light one, and the question of whether an allegedly defamatory statement could reasonably be interpreted to be “of and concerning” a particular plaintiff was a question of law for the Court to decide.

Where, as here, the work claimed to be defamatory was fictional, the Court’s task necessarily entailed a search for similarities and dissimilarities so as to determine whether a person who knew Halftown and who saw the episode could reasonably conclude that Halftown was Jane.

Because the “of and concerning” inquiry is so fact specific, New York courts have failed to carve out consistent guidelines for determining how similar the plaintiff and the fictional character must be. Further complicating the issue was the counterintuitive nature of a libel by fiction claim. The plaintiff must simultaneously assert that the character is of and concerning him and her because of their similarities, but also must deny significant aspects of the fictional character, i.e., the defamatory aspects of the character. Accordingly, New York courts have required the plaintiff in a libel by fiction case to show that the description of the fictional character is so closely akin to the real person claiming to be defamed that a reader or viewer of the alleged defamatory work, knowing the real person, would have no difficulty linking the two. Superficial similarities are insufficient.

Here, the Court found there was no proof that Jane’s character was “of and concerning” Halftown such that the description of Jane’s fictional character was so closely akin to Halftown that a viewer of the episode who knew him would have no difficulty linking the two. And the most obvious difference between the fictional character of Jane and Halftown was that the former is a female and the latter a male. Additionally, there was no indication Halftown was ever involved in any land deals or discussions with a voting commissioner regarding the implementation of a MVP or any other electoral issue.

Although the fictional Jane and Halftown had the same surname, and were both members of a tribal council, those were found to be superficial similarities insufficient to establish that Jane’s character represented Halftown. Cayuga Nation and Halftown failed to sufficiently allege that the episode’s depiction of Jane would be understood by the average viewer as conveying actual facts about Halftown. What’s more, as conceded in the complaint, a disclaimer was played during the credits of each episode of the series representing that “[t]he events and characters depicted in [the series] are fictitious” and that “[a]ny similarity to actual persons, living or dead, or to actual events, is purely coincidental.”

The Court concluded that Cayuga Nation and Halftown failed, as a matter of law, to establish that the fictional episode was “of and concerning” Halftown and his defamation claim was be dismissed.

Cayuga Nation and Halftown claimed that Showtime misappropriated their likenesses during the episode, without written consent, in violation of New York Civil Rights Law § 51.4 That statute provides, in relevant part, that:

Section 51 was narrowly construed and strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person. Because Cayuga Nation was clearly not a living person, the claim pursuant to section 51 was dismissed. Additionally, since works of fiction and satire do not fall within the narrow scope of the statutory phrases ‘advertising’ and ‘trade’, the claim by both Cayuga Nation and Halftown pursuant to section 51 was also dismissed.

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