‘Based on a True Story’ (Except the Parts That Aren’t)

The following stories are not based on real events. In fact, they’re completely made up — even thought they’re meant to seem real.

No, Queen Elizabeth’s staff never hid a copy of The Sunday Times from her because of a devastating, but nonexistent, front-page headline: “Queen Should Abdicate in Favour of Prince of Wales — Half of British Public Agrees.”

No, the former Los Angeles Lakers head coach Jerry West didn’t fly into fits of rage so violent that he snapped a putter over his knee and tossed his Most Valuable Player trophy through a window in his office.

And no, the two police officers who unwittingly missed an opportunity to arrest Jeffrey Dahmer before he could kill again were not given honors as officers of the year by the Milwaukee Police Department.

But the millions of people who watched three of the most popular historical dramas of the last year — “The Crown” and “Monster: The Jeffrey Dahmer Story” on Netflix and HBO’s “Winning Time: The Rise of the Lakers Dynasty” — were left to separate fact from fiction on their own.

These series are hardly outliers in the flourishing genre of based-on-a-true-story entertainment.

As the number of shows and movies that depict real events has grown in recent years — never before have dramatizations of well-known people and events been so popular and prevalent — so, too, have the liberties that screenwriters are taking with the facts.

In many instances, these are not mere embellishments for dramatic flair but major fabrications. Some of the people who claim they’ve been reduced to crude caricatures onscreen are suing for defamation. And shows like “The Crown” have been forced to belatedly add disclaimers stating that what people are watching is in fact a dramatized version of real events.

Olivia Colman as Queen Elizabeth II in “The Crown.” A British journalist who has fact-checked the series said some scenes were “a complete perversion of history.”Credit…Mark Mainz Des Willie/Netflix

Sometimes disclaimers are enough to protect a studio from legal liability, especially if they are prominently displayed in the opening credits and offer detail of what has been fictionalized — beyond a generic acknowledgment such as “based on real events,” legal experts say. The First Amendment offers broad protections for expressive works like film and television productions that depict real people by their real names.

But if someone can convincingly claim that he or she was harmed by what screenwriters made up, that is grounds for a strong defamation suit, said Jean-Paul Jassy, a lawyer who works on media and First Amendment cases in Los Angeles.

The Return of ‘The Crown’

The hit drama’s fifth season premiered on Netflix on Nov. 9.

  • The Royals and TV: The royal family’s experiences with sitting for television interviews have been fraught. The latest season of “The Crown” explores that rocky relationship.
  • Suiting Up: The Savile Row tailoring in “The Crown” makes no guarantees for the survival of the monarchy, but it leaves little doubt that in men’s wear, the suit is still king.
  • Meeting the Al-Fayeds: The new season includes portrayals of the Egyptian businessman Mohamed Al-Fayed, his son Dodi and his personal valet — who had all connections with the royal family.
  • Casting Choices: In a conversation with The Times, the casting director Robert Sterne told us how the drama has turned into a clearinghouse for some of Britain’s biggest stars.

“A disclaimer is not a silver bullet,” he said.

“And this is where it gets very tricky with docudramas,” Mr. Jassy added. “A court could say: ‘I understand there are fictionalized elements of your show. But you used a real person’s name, and you presented as fact something that’s false that hurt their reputation.’”

Lawsuits fail more often than not because very few fans of these shows probably believe they are watching history as it literally unfolded. Hollywood has, of course, always amped up the drama when telling — and selling — true stories.

But when shows like “The Crown” become so popular because — at least to some degree — viewers believe they are getting an education, the liberties taken by writers go beyond dramatic license, say those who have a stake in getting the facts straight.

Hugo Vickers, a British journalist who has been fact-checking episodes of “The Crown” for The Sunday Times and is the author of several books about the monarchy, called some of what has transpired over the show’s five seasons “a complete perversion of history.”

“They do it all the time,” Mr. Vickers said. “And they couldn’t care less.”

Netflix added a disclaimer after criticism from high places about the inaccuracies in “The Crown,” including from the famed British actress Judi Dench and former Prime Minister John Major over a scene that depicted an imagined conversation between Mr. Major and Prince Charles about the queen’s possible abdication. But the disclaimer, saying the series is “inspired by real events,” appeared not on the show itself but rather on its press materials and in the trailer, which aired on YouTube.

A disclaimer also appears in HBO’s show on the Lakers, saying in part, “This series is a dramatization of certain facts and events.” But Mr. West, the former coach, and some of his players found that wholly insufficient. Through his lawyer, Mr. West demanded an apology from HBO, saying the show “falsely and cruelly” maligned him as an “an out-of-control, intoxicated rage-aholic.”

Kareem Abdul-Jabbar, the former Lakers center and a central character in “Winning Time,” accused HBO of “heavy-handed virtue signaling” for inventing scenes meant to highlight the sexist treatment many women endured in the workplace in the 1970s.

In his Substack newsletter, Mr. Abdul-Jabbar wrote that the show’s attempt to draw attention to the issue was offensive because it depicted one female team executive unbuttoning her blouse and fixing her hair before meeting with her future boss — something the executive has said never happened.

The scene, Mr. Abdul-Jabbar said, “reduces her intelligence and competence for a cheap joke.”

HBO said in a statement that it “has a long history of producing compelling content drawn from actual facts and events that are fictionalized in part for dramatic purposes.” The network added, “‘Winning Time’ and its depictions, as with other similar shows, are based on extensive factual research and reliable sourcing.”

HBO is not the only studio that has invented story lines that have a poignant social and cultural resonance today.

Defamation experts and Hollywood studios are closely watching developments in a lawsuit filed against Netflix by Linda Fairstein, a former prosecutor who objected to her depiction in a 2019 series about the “Central Park Five” case, “When They See Us.” The show dramatizes how law enforcement in New York City, including Ms. Fairstein, rushed to condemn five Black and Latino teenagers — all of whom were eventually exonerated — for the rape of a white woman who was jogging in Central Park in 1989.

In the series, Ms. Fairstein is shown withholding evidence, encouraging the police to harshly interrogate the suspects and expressing a callous disregard for the truth about whether they were actually guilty. After the show was released, and a backlash against Ms. Fairstein on social media ensued, her book publisher dropped her and she was forced to resign from her position on several boards.

Ms. Fairstein has said her portrayal is “grossly and maliciously inaccurate,” and she sued in March 2020. A federal judge ruled that her claims of defamation in five separate scenes in the series were plausible, and the case is proceeding in U.S. District Court. Ava DuVernay, the show’s creator, consulted with the wrongfully accused men, but not with Ms. Fairstein.

In court filings, lawyers for Netflix argued that the script was clearly protected under the First Amendment as “an artistic dramatization of controversial and contested historical events.”

“When They See Us” dramatized the “Central Park Five” rape case as a rush to condemn the accused.Credit…Atsushi Nishijima/Netflix
Linda Fairstein, left, in 1990, when she ran the Manhattan district attorney office’s sex-crimes unit.Credit…Chester Higgins, Jr./The New York Times
In “When They See Us,” Felicity Huffman portrayed Ms. Fairstein, who called the role “grossly and maliciously inaccurate.”Credit…Netflix

With the heightened sensitivity toward confronting racial and gender inequality, many Hollywood screenwriters are turning these issues into major story lines, even if that means sometimes exaggerating the details. This was the case in “Monster: The Jeffrey Dahmer Story,” one of Netflix’s biggest hits of the last year.

While the series uses historical records to accurately portray much of how Dahmer, the cannibalistic serial killer, preyed on young men and got away with it for so long, including court transcripts from his 1992 trial, it invents moments to convey how systemic failures in the criminal justice system allowed him to remain at large.

The opening scene of “Monster,” for instance, shows one of the characters, a Black woman, watching a report on the evening news that unsettles her: Five white Milwaukee police officers had beaten up a Black undercover officer, thinking he was a criminal.

But when The Milwaukee Journal Sentinel fact-checked the series — and revealed more than a few inaccuracies — it found no reports of any incident like that in Milwaukee. The only report that seemed to match, the paper said, occurred in Tennessee a year after Dahmer was arrested.

Anne E. Schwartz, a former police reporter who was on the scene the night Dahmer was arrested and later wrote a book about the case, faulted the writers for projecting themes that are far more salient today onto events that happened more than 30 years ago.

“We’re going back and looking at this case from the lens of 2022, not 1990,” she said.

When HBO debuted a biographical drama last year about Julia Child, the celebrity chef, some who knew her said it had inaccurately portrayed her husband, Paul, as being threatened by her success. And Ms. Child’s longtime producer complained that he was wrongly shown as skeptical about her first cooking program — a barrier-breaking success for a woman on television in the 1960s.

Sarah Lancashire and David Hyde Pierce as Julia and Paul Child in “Julia.”Credit…Seacia Pavao/HBO Max

Lawyers who represent studios say it’s often not feasible — or legally necessary — to fact-check scripts for historical accuracy. And it’s uncommon for producers to involve the people whose lives they are fictionalizing. They’re under no legal obligation to do so.

“In the industry, most real-life people are not consulted very much because it’s a pain for the filmmakers,” said Zelda Perkins, a former assistant to the movie producer Harvey Weinstein. Ms. Perkins worked with the producers on “She Said,” the new drama that follows New York Times reporters as they uncover Mr. Weinstein’s decades of sexual abuse of women.

“I think that the film industry has an enormous way to go if they’re going to continue making stories about real-life people at the speed that they do,” she added. “Because actually having gone through it with being treated fairly respectfully, I cannot even imagine the damage it must cause to people who weren’t collaborated with.”

Filmmakers often try to be as sensitive as possible to the people whose stories they’re telling, said Brad Simpson, producer of the “American Crime Story” anthology, which covered three dramatic moments in recent history — the O.J. Simpson murder trial, the assassination of Gianni Versace and President Bill Clinton’s impeachment. That’s why, Mr. Simpson said, he and his colleagues involved Monica Lewinsky in their series “Impeachment” to help her regain control of her version of what had happened.

“I think when you’re making TV based on real people, you always have to be incredibly aware that there are real victims at the center of all these stories,” he said.

But Mr. Simpson, who likened the current popular fascination with true crime to what the nation experienced in the 1960s and ’70s with “In Cold Blood” and “Helter Skelter,” acknowledged that at the end of the day, what he and other producers were doing was creating entertainment.

“It’s really hard for people when you have been part of a true story and then you see your experience onscreen. Your natural instinct is to feel violated and to feel like: ‘Well, nobody spoke to me. Or I should be paid for my story,’” Mr. Simpson said.

“That’s not the way the law works,” he added. “That’s not the way these shows get made or written.”

And the cold reality, he said, is “your story can be used to sell streaming subscriptions.”

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