When Truth Meets Fiction, Lawyers Intervene

A Washington, D.C., theater is canceling its production of the play Imagining Madoff after objections from human rights activist and Holocaust survivor Elie Wiesel. The play revolves around a fictional meeting between the convicted Ponzi schemer and Wiesel. Wiesel wrote a letter to the playwright, calling her work obscene and defamatory, and saying he would have his lawyer stop the production. Robert Siegel talks to lawyer and Columbia Law School lecturer Richard Lehv about the legal basis for Wiesel's objection, and what rights a living person has when they are fictionalized.

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ROBERT SIEGEL, host:

Now, an item about a collision between fiction and reality that concerns a play by Deb Margolin called "Imagining Madoff." It's a play about Bernard Madoff, the Wall Street swindler, and there were three characters in it: Madoff, Madoff's secretary and Elie Wiesel, the author and Nobel laureate who holds the unfortunate distinction of also being the most famous person who was fleeced by the real-life Madoff.

But Margolin, the playwright, says she used the character of Wiesel as a paragon of decency and morality confronting the convicted Ponzi schemer. Wiesel read the script and evidently didn't see it that way. He objected to her use of him as a character. He called it defamatory and obscene, and he threatened to have his lawyer block a production of "Imagining Madoff" at Washington, D.C.'s Theater J.

The theater's artistic director suggested a rewrite without the Wiesel character. The playwright declined and the play was pulled.

All of which led us to wonder, would Mr. Wiesel have had a case? Are living individuals protected from fictional depictions of them in which they say things that they never in fact did say? Well, Richard Lehv is a lawyer in New York, who specializes in intellectual property rights and lectures in that field at Columbia University Law School. Welcome to the program.

Mr. RICHARD LEHV (Lawyer; Lecturer, Columbia University Law School): Nice to be here.

SIEGEL: And what do you think, if Mr. Wiesel had brought suit to try to enjoin the theater from staging the play, would he have stood a good chance in court?

Mr. LEHV: Well, in my view, it's a free country. You can make a public figure a character in a work of fiction. The best example of that recently was the movie "The Queen." There's all kinds of dialogue in that movie between Queen Elizabeth and Prince Philip that nobody knows whether it ever occurred.

There are some rules that limit your right to do this, but you can do it in general as long as you don't do two things. You can't use somebody's name or picture to sell a product, so you couldn't put Elie Wiesel's picture on a can of peas or on an advertisement for a can of peas. But the other thing you can't do is you can't defame somebody. You can't make false statements about the person that tend to damage their reputation.

So here we don't know if there are any false statements about Elie Wiesel, but we do know that this depicts a conversation that never occurred.

SIEGEL: I assume that if I were an editorial cartoonist and I'd drawn a cartoon of Bernard Madoff and Elie Wiesel having a conversation, you couldn't stop me from doing that.

Mr. LEHV: Probably not, but this is a lot more detailed and extensive. You know, in general, the First Amendment protects an author even if it's false, as long as the author doesn't know it's false or doesn't act with reckless disregard for whether it's true or false. Here, Wiesel has said, look, this never occurred.

So the question is if it's a false statement and she knows it's false, the playwright knows it false, does it tend to damage his reputation or does it tend to harm his feelings because some states have a tort called False Light Invasion of Right of Publicity. So the question is does it damage his reputation?

And I guess the argument he would make is, look, I was a victim of Bernie Madoff. I invested - my foundation invested money in the foundation. It was an arm's length transaction. I didn't know the man. This play makes it look like I'm his friend. I'm having late-night conversations with him. We're discussing things, which never happened.

My donors, who lost a lot of money, may think, hey, you never told us you were friends with Bernie Madoff. You never told us you were having these meetings with him, and that arguably could damage his reputation.

SIEGEL: In this case, ultimately Mr. Wiesel's letter was taken very seriously, so the response was a personal one to him in deference to his wishes. You're saying if this had been litigated down the line, very unlikely that he would have prevailed.

Mr. LEHV: He might have a claim. You never know what a court might do. There was a case in California involving Vanna White, who sued Samsung Electronics, which did an ad - it takes place in the future. It shows a robot wearing a blonde wig turning over cards like the cards they have in "Wheel of Fortune." And she said that's me. You're using my persona. And they said, no, no, it's a joke. It takes place in the future. It's obviously a robot.

And a lot of people thought she would have to lose that case. But believe it or not, she ultimately won. So you never know. And even if they don't win, the plaintiffs, if they want to stick with it, they can carry on the litigation for many years, and litigation can be very expensive and time-consuming. So sometimes it's a judgment call to just say, look, we'll just change the play or withdraw it rather than go through very expensive litigation, even if it's a very small chance that we'll lose.

SIEGEL: Well, Mr. Lehv, thanks for the consult.

Mr. LEHV: You're quite welcome. My pleasure to be here.

SIEGEL: That's Richard Lehv, New York intellectual property rights lawyer.

The play, "Imagining Madoff," will be performed at another theater this summer at Stageworks Hudson in Hudson, New York. The character, the one originally called Elie Wiesel, has been renamed, for that production, Solomon Galkin.

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