These legal and ethical scuffles extend to movies too. Just last week, a lawyer for Donald Trump accused the filmmakers behind forthcoming Trump biopic The Apprentice (written by VF’s Gabriel Sherman) of defamation and election interference, issuing a cease and desist letter. The producers released a statement in response: “The film is a fair and balanced portrait of the former president. We want everyone to see it and then decide.”
The deluge of true-crime scripted series and dramatizations of recent historical events suggests that viewers crave the unexpected twists and raw authenticity of real stories. But they also expect a smooth narrative. When I spoke to When They See Us writer Michael Starrbury back in 2019, he talked about trying to stay true to “the spirit” of Korey Wise’s story in the final episode while ensuring that it was digestible for a mass audience. “You don’t have a lot of time and you have to make choices on how much time you want to see someone suffering in prison,” he said. “So you do compress the time and consolidate characters. Those are things that happen naturally in a narrative versus a documentary.”
It’s a delicate balancing act for the writers trying to wrangle unruly human experience into a svelte storyline that holds the viewer’s attention. “Hollywood executives want a heightened sense of drama—the OMG-crazy version of the story—and a clear progression of events,” says the showrunner of a successful true-crime series. “Most of the time, our lives are not structured like a screenplay, and sometimes there’s stuff that’s internal.” But TV execs demand big external events, the showrunner says, even if reality didn’t actually unfold that way. “In a classic fictional mystery story, there are red herrings and alternative suspects. In real life there is only one person who committed the murder and if you suggest that other people might have been involved or done it and you cannot back that up, you are defaming them.” Sometimes executives might push for a clear villain, but the showrunner says, “it can be really tricky, because people often don’t do things for a single motive.”
Baby Reindeer is a particularly fascinating case—a first-person account of a sexual assault survivor struggling with a stalker. Do we really want to create an environment in which a creator cannot dramatize this complex, traumatic experience? “I personally wouldn’t be comfortable with a world in which we decided it was better that Richard was silenced and not allowed to tell the story,” Netflix UK policy chief Benjamin King said during testimony at a parliamentary hearing.
“It’s a morass, because there are no easy answers,” the showrunner says. “[Viewers] understand on a certain level that these things are fictionalized, but they will still assume that the story bears some relationship to the facts. So if you wander too far off the garden path, you are potentially ruining someone’s life.”
Studios are legally responsible for the shows they create, and they have guards in place to keep reality-inspired dramas on solid ground. Dahvi Waller, creator of FX’s historical limited series Mrs. America, says she did enormous amounts of research and kept backup for every detail the writers included about real-life figures. Once the network approved the scripts and before the show went into production, she says, “A group of lawyers were combing through the scripts and then we had to annotate them, [explaining,] where did we get this from? Where [did] we get that from? They were very, very thorough.”
Another way that studios try to insulate themselves from legal backlash is by purchasing the “life rights” from the real people behind fictionalized characters. But it turns out that the term life rights is misleading. People don’t really own their life story. Producers can and do use material that’s in the public record. So the life rights contract is an agreement not to sue the studio for defamation if you don’t like the end product—a way of buying their support or silence. A life rights contract could also dissuade other studios from buying competing projects based on the same story.
Is the real person being fictionalized a public figure or an ordinary, private person like Harvey? That also makes a difference, at least in terms of the legal ramifications. “If it’s a public figure who is suing because of something that’s been said about them or the way that they’ve been portrayed, then that public figure has to show clear and convincing evidence that the defendants—the writer, the network, whoever—made false statements about them, knowing they were false, or being reckless as to their falsity,” says Alexander Rufus-Isaacs, a lawyer with extensive experience in this area who currently represents Rachel DeLoache Williams. Ideally you’d find a smoking gun, like an email that says something like: “‘Hey, we are portraying Mr. X as a child molester, but we know that he isn’t,’” says Rufus-Isaacs. “In reality, you very rarely find anything quite as definitive, so you’re left drawing inferences.” For a private figure, he says, it’s a much lower bar: “They only have to establish that the [defendants] were negligent, that they didn’t research the thing properly.”
Although he’s not involved in the Baby Reindeer case, Rufus-Isaacs sighs when I ask him about it. “The question I ask creatives is this: Don’t you feel some responsibility to the person you’re talking about?” he says. “If you’re not going to be entirely accurate and you’re going to be nasty about them, don’t you have a duty to disguise them and protect them?” They changed Harvey’s name, but Rufus-Isaacs believes they kept too many identifying biographical details. Instead of having fictional Martha work in law the way the real Fiona Harvey does, he says, “Make her a couturier or something!”
This echoes comments from Laura Wray, a woman who has accused Harvey of stalking her in real life. (Harvey has denied Wray’s allegations and told Piers Morgan that Wray made them because Harvey was running for parliament at the time.) “It was obvious to me and to a lot of other people that she [‘Martha’] was my stalker,” she has said. “They made her a lawyer. That detail didn’t have any bearing on the story. They could have made her a doctor, or an accountant.” And she noted that Gunning sounds like her: “I mean, she had the same laugh, even the same slightly kind of funny waddling walk.”
For his part, Gadd told VF earlier this year that the stage version of Baby Reindeer got a lot of attention, and he didn’t hear anything from Harvey at the time. “And I think in the [Netflix] show as well, we’ve gone to lengths to disguise a lot of aspects of all of the real-life people in the show…so I suppose we’ve covered ourselves as much as we possibly can.”
Rufus-Isaacs agrees that creatives should have the leeway to play around with real characters—with a simple caveat. “If they make somebody less likable, I think that they have a duty to disguise that person by absolutely changing their name and important biographical details about them. If they do that, then they’re free to do what they want.” Otherwise, he says, “The effect is that people watch a series they understand is based on real life, therefore they judge the person in question, not on who they actually are, but as to how they’re portrayed in the series. And for people who are [portrayed] unflatteringly, then their reputation becomes completely soiled. You’re really harming them.”
Vanity Fair has reached out to Fiona Harvey and Netflix for additional comment.
