Take note, Netflix and Richard Gadd – as the makers of The Crown and South Park will attest, you can say anything with the right disclaimer. Photo / Ed Miller, Netflix
Take note, Netflix and Richard Gadd – as the makers of The Crown and South Park will attest, you can say anything with the right disclaimer. Photo / Ed Miller, Netflix
Take note, Netflix and Richard Gadd – as the makers of The Crown and South Park will attest, you can say anything with the right disclaimer.
“This is a true story”. This statement, which is shown at the beginning of Netflix’s talking-point drama Baby Reindeer, may have become one of the most expensive own goals in television history. Fiona Harvey, who claims she is the model for the obsessed stalker Martha in the series, is suing the streaming company for US$170 million ($277m), citing “defamation, intentional infliction of emotional distress, negligence, gross negligence and violations of her right of publicity”.
Ever since she waived any anonymity in the most public of fashions to appear on Piers Morgan’s show to discuss the series, Harvey has denied the character owes anything to reality, instead suggesting it is nothing more than its creator Richard Gadd’s over-active imagination.
Gadd, who initially insisted the show was essentially documentary fact – hence the opening statement – has now rowed back slightly, saying in April that events were “tweaked slightly to create dramatic climaxes”.
“It’s very emotionally true, obviously,” he said. “I was severely stalked and severely abused. But we wanted it to exist in the sphere of art, as well as protect the people it’s based on.”
Some of these fabrications and embroiderings included the suggestion Harvey, as Martha, had been imprisoned (she was not) and that she viciously attacked Gadd’s then-girlfriend in a fit of anger and frustration.
The lawsuit filed against the streaming company reads: “The lies that [Netflix] told about Harvey to over 50 million people worldwide include that Harvey is a twice-convicted stalker who was sentenced to five years in prison and that Harvey sexually assaulted Gadd. Defendants told these lies, and never stopped, because it was a better story than the truth, and better stories made money.”
There is an element of truth in this, as well as in the subsequent statement that “Netflix, a multi-national billion-dollar entertainment streaming company, did nothing to confirm the ‘true story’ Gadd told. That is, it never investigated whether Harvey was convicted, a very serious misrepresentation of the facts. It did nothing to understand the relationship between Gadd and Harvey, if any … As a result of [Netflix’s] lies, malfeasance and utterly reckless misconduct, Harvey’s life had been ruined. Simply, Netflix and Gadd destroyed her reputation, her character and her life.”
Piers Morgan has responded to criticism from alleged Baby Reindeer stalker Fiona Harvey for only paying her £250 ($517) for a sit-down interview on his program Uncensored.
The question of safeguarding and fact-checking, which would have meant that a company such as the BBC would never have broadcast Baby Reindeer in its existing form without rigorous investigation first, will undeniably now become a major talking point in the lawsuit, whatever its outcome. Yet, if the show had used the standard disclaimer “based on a true story”, rather than so boldly claiming that it was verifiable truth, it would have made it considerably harder to accuse Netflix and Gadd of presenting the Martha/Harvey story as anything other than fictionalised.
The streaming company can afford the best lawyers on the planet, and the case may well founder before it begins, or, alternatively, be settled long before it reaches court. Nonetheless, it raises a fascinating and salient issue: what does a disclaimer do, legally? And when did they become a necessity in an industry that has long been synonymous with playing fast and loose with the truth – and how have the creative and mischievous managed to subvert the often boilerplate wording usually forced on filmmakers by cautious studios and producers?
‘A few of the characters are still alive – the rest met death by violence’
The charismatic but dangerous Rasputin – the so-called “mad monk” – was murdered in 1916 when Russian aristocrats, fearful of the influence he held over Russian Emperor Nicholas II and his wife Alexandra, assassinated him. Their ringleader, Prince Felix Yusupov, was exiled, rather than executed, and so he was alive – if now penniless – 16 years later when the first Hollywood account of Rasputin’s death, MGM’s 1932 Rasputin and the Empress, was produced.
Yusupov took exception to his portrayal as “Prince Paul Chegodieff”, but given he had written his own memoir about his part in Rasputin’s murder, Lost Splendour, he was hardly in a position to complain. Yet it was his wife Irina who was able to claim that her reputation was damaged, given she is portrayed being raped and manipulated by Rasputin in her guise as ‘Princess Natasha’.
In fact, the two never met, and even though MGM knew this during the film’s production, they kept the falsehood in the film, which they promoted heavily as a true story, declaring “This concerns the destruction of an empire … A few of the characters are still alive—the rest met death by violence”. Irina sued MGM and won US$125,000 and the deletion of the offending scene, and the film was duly taken out of circulation for decades to come.
She also ensured, from that point onwards, even impeccably historically accurate biopics would contain a description of how the films were not intended as a realistic depiction of characters or events: a state of affairs suggested by the judge who found against MGM in the court case, who would, unwittingly, give rise to the “all persons fictitious” disclaimer, as it was known.
‘Any resemblance between the characters and any persons, living or dead, is a miracle’
The standard wording, routinely used on Hollywood films for decades afterwards, was “The characters and events depicted in this motion picture are entirely fictitious, and any similarity to names or incidents is entirely coincidental”. This may have satisfied lawyers and studios alike, but it did not mean that the creative could not have some fun with the tradition. As early as 1940, the Three Stooges’ wartime comedy You Nazty Spy! could declare that “Any resemblance between the characters in this picture and any persons, living or dead, is a miracle”, just as the subversive 1941 meta-comedy Hellzapoppin’ suggested its zaniness from its opening statement that “any similarity between Hellzapoppin’ and a motion picture is purely coincidental”.
Yet, as with so many other things, Charlie Chaplin did it best, with his anti-war satire, 1940′s The Great Dictator, featuring the intertitle that “Any resemblance between Hynkel the dictator and the Jewish barber is purely coincidental”. Any further resemblance to other prominent European dictators, then, could only be inferred.
‘Safeguards would prevent the occurrence of such events as are depicted in this film’
If it was comedy that first took the opportunity to make the disclaimer something to be lightly ridiculed, other genres were equally adept at exploiting its potential for their own ends. The otherwise entirely straight-laced 1943 horror picture I Walked With a Zombie thus carried the declaration in its opening titles that “Any similarity to any persons, living, dead, OR POSSESSED, is entirely coincidental” – an opportunity for a nervous audience to laugh before the chills and scares began in earnest.
Then there’s Stanley Kubrick’s seminal 1964 Cold War satire Dr Strangelove, which started its existence as a serious examination of nuclear strife until Kubrick decided that the story was so horrific it could only be tackled as black comedy. Its tongue-in-cheek disclaimer read: “It is the stated position of the United States Air Force that their safeguards would prevent the occurrence of such events as are depicted in this film.” Undoubtedly an enormous relief, all around.
Newman and Redford in the 1969 blockbuster 'Butch Cassidy and the Sundance Kid'.
‘Most of what follows is true’
By 1969, the trope was sufficiently known for the (intentionally) inaccurate and glamourised western Butch Cassidy and the Sundance Kid to declare “Most of what follows is true” in its opening disclaimer. The film’s screenwriter William Goldman enjoyed a career in which he often played fast and loose with ideas of fiction versus documented reality, claiming his 1987 romantic fantasy comedy The Princess Bride was based on a novel by the fictitious S Morgenstern, even as he wrote about such real-life characters as Charlie Chaplin and the lion-hunter John Henry Patterson.
His best-known foray into biopic was 1976′s All The President’s Men, about the Watergate scandal. Mindful the events being depicted were so recent in history any invention would be seized upon by his detractors and used to rubbish the film’s accuracy, Goldman tried to keep the film as accurate as possible, even if its most famous line – “Follow the money” – was his own invention.
‘I’d like to thank Joey LaMotta even though he’s suing us’
Despite (or perhaps because of) the controversy with the Rasputin film, biopics continued to be a major part of Hollywood’s output over the decades – as, of course, they are today. Yet given that it was now necessary to pretend that these films focusing on real-life characters and events were also creative works of fiction, there was some inevitable silliness and back-covering; the 1980 Jake LaMotta biopic Raging Bull, for instance, thanked LaMotta for his work as a technical consultant and credited his biography as the film’s source material, before, ridiculously, claiming that he was a fictitious invention.
This could lead to further complication. LaMotta was unimpressed by his screen incarnation, saying “I didn’t particularly like the film. For the first time I thought, my God, was I beating up my brother and doing all that kinda stuff?” His brother Joey, portrayed in the film by Joe Pesci, even considered legal action, leading Robert de Niro, who won an Oscar for playing Jake, to quip “[I’d like to thank] Joey La Motta even though he’s suing us. I hope that settles soon enough so I can go over to his house and eat once in a while”.
Joe Pesci is Joey La Motta, brother, manager and sparring partner of boxer Jake La Motta, played by Robert De Niro, in Raging Bull.
‘A mere pretty face without any singing ability or acting talent’
The disclaimer was believed to be cast iron, but there were still instances in which it failed to hold water. An excellent example of this was the now-forgotten 1980 musical drama The Idolmaker, which is best known for being the directorial debut of An Officer and a Gentleman’s Taylor Hackford. The film subverted the Star is Born template, revolving around a cynical and unscrupulous promoter who takes an unexceptional young man and turns him into a musical idol, and this did not appeal to Fabian Forte, a former 50s heartthrob who claimed the picture was a depiction of him, and presented him as “a totally manufactured singer, a mere pretty face without any singing ability or acting talent.”
It would have been easier to deny this if Forte’s former manager, Bob Marcucci, had not been involved in the film’s production. Forte was eventually awarded nearly 10 per cent of the film’s profits.
Arguably, the disclaimer was never taken wholly seriously, but as time went by, filmmakers became ever more flagrant in their ridicule of it. John Landis declared, in 1980′s An American Werewolf in London, that persons “living, dead or undead” were not being depicted in the film, and the 1985 zombie picture The Return of the Living Dead offered tongue-in-cheek subversion, by saying that “The events portrayed in this film are all true. The names are real names of real people and real organisations”.
This may have reached its apotheosis in the glories of South Park, which started in 1997 with its declaration that “All characters and events in this show – even those based on real people – are entirely fictional. All celebrity voices are impersonated … poorly”. Another good laugh can be had from the same year’s dreadful Leslie Nielsen ‘comedy’ Mr Magoo, which elicits its intended humour from its protagonist’s short-sightedness and then has the temerity to say in the end credits that “The preceding film is not intended as an accurate portrayal of blindness or poor eyesight”. This moment is considerably funnier than anything in the previous 90 minutes.
Sean Connery and Daniela Bianchi in the James Bond film, From Russia, With Love.
‘The opinions expressed on this commentary do not represent the views of the studio’
When DVDs (and, later, Blu-Rays) temporarily became the salvation of the home video industry in the early 2000s, one of their most prized features (and, indeed, much-missed by cineastes today) was the cast and crew commentary. Rather than the carefully edited and PR-finessed interviews often harvested from a film’s electronic press kit, the commentary could often consist of riotous, scurrilous stories from the film’s production, or, if a few years had passed, could consist of directors or stars merrily ridiculing whatever terrible film they had been a part of (Joel Schumacher’s discussion of Batman and Robin is a case in point).
The suspicion remains that very few studio executives ever bothered to listen to these commentaries – hence the often jaw-dropping stories that were found on them – and thus they carried the vague catch-all disclaimer that “The opinions expressed on this commentary are solely those of the filmmakers and do not represent the views of the studio”. Yet it was DVD’s precursor, Laserdisc, that threw up the biggest controversy in this regard, when commentaries on the first three James Bond films had to be suppressed in response to the outraged reaction from Bond’s production company Eon, who indicated no fewer than 185 statements were “inaccurate, insensitive, inflammatory or potentially libellous.”
These included discussion about Sean Connery gaining weight during the production of From Russia With Love, the assertion several actresses had been cast purely for their looks rather than their thespian abilities, and Dr No’s director Terence Young saying of his accidentally dyed hair that “I’m not a fag and I don’t normally go around like this”. No disclaimer would be quite enough to cover that level of offence.
‘This fictional dramatization tells the story of Queen Elizabeth II’
The debate about whether Netflix’s award-winning show The Crown was brilliantly daring television that justified its fictional inventions, or simply prurient soap opera that made things up almost at random, has continued even after the series has concluded. Yet, as it drew closer to the present day, attention undoubtedly focused on developments that many people could remember as having taken place in their lifetimes, which meant screenwriter Peter Morgan’s inventions stood out all the more.
By season 5, in response to outcry from everyone from Sir John Major to Dame Judi Dench, Netflix added a disclaimer onto the show’s marketing – although not the episodes themselves – declaring that “Inspired by real events, this fictional dramatisation tells the story of Queen Elizabeth II and the political and personal events that shaped her reign”. It did little to stop the criticism, but at least it was a gesture in the right direction – something that Netflix might have remembered a few years later with Baby Reindeer.
