'Law & Order' Faces Libel Suit

Lawyer Edward Rosenthal explains how the doctrine "libel in fiction" is being used on behalf of Ravi Batra, whose suit argues the plot of a 2003 episode defamed him by including an unsavory character, Ravi Patel, who was allegedly modeled on him.

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ALISON STEWART, host:

The TV show "Law and Order" is based on a simple premise. "In the criminal justice system the people are represented by two separate yet equally important groups, the police, who investigate crime, and the district attorneys, who prosecute the offenders."

RACHEL MARTIN, host:

The creators of the show are used to telling the stories of other people's legal battles, but now they're facing one of their own. They've been accused of allegedly ripping...

(Soundbite of music "Law and Order")

MARTIN: A story from the headlines. Scandalous. Ravi Batra, a Manhattan lawyer, filed a lawsuit against the show's creator, Dick Wolf, arguing that the plot of a 2003 episode defamed him by including an unsavory character, Ravi Patel, who was allegedly modeled on him. Now, last week, a Supreme Court judge rejected a motion to dismiss the case, meaning it moves forward. So we like the story so much, we decided to take it one step further. So we're ripping this ripped-from-the-headlines story from the headlines for ourselves. Wait, what does that sound like?

(Soundbite of music "Law and Order")

STEWART: My head almost exploded, too.

MARTIN: Yeah, that hurt. OK, so here to help us make sense of all of this is Edward Rosenthal. He is a partner at Frankfurt, Kurnit, Klein & Selz, who's been practicing intellectual property law for 25 years. Edward, thanks for joining us.

Mr. EDWARD ROSENTHAL (Chairman, Intellectual Property and Litigation Groups, Frankfurt, Kurnit, Klein & Selz, PC): Good morning. Thank you for having me.

MARTIN: Good morning. So first, let's talk about what this piece of law is, this claim of "libel in fiction." This is what Mr. Batra has filed his suit under. What is libel in fiction?

Mr. ROSENTHAL: Well, libel in general is when somebody claims that a statement of fact made about him or her harmed his or his character. And libel in fiction is a sub-category of that law that brings that kind of claim arising out of a work of fiction, a novel, a television show, where somebody claims that something that was said about them in a book or TV show harmed their reputation.

MARTIN: Now, the whole moniker, "libel in fiction," it's under - I mean, it would seem that this would be rather hard to prove. I mean, these are works of fiction. How often are these kinds of suits brought? And how often are they successful?

Mr. ROSENTHAL: Oh, there have been over the past while, 25 years, there have been a number of these cases, actually. Some of which you may have heard about. And they have almost all failed, ultimately.

MARTIN: Why? Why is it so hard to prove?

Mr. ROSENTHAL: I think that, first of all, there's the First Amendment element here, which is that people who write books or write television shows or other works of entertainment need to be free to be able to be creative. And many people, not just televisions shows like "Law and Order," but novelists, use real-life situations in order to inspire their fiction. So I think the First Amendment comes into play here. So the courts are very hostile to them, and they've set up a standard that's very, very difficult for a plaintiff to succeed at.

MARTIN: Let's talk specifically about this case. The man in question, the Manhattan lawyer, Ravi Batra, claims that "Law and Order" writers created this character after newspaper headlines linked him to an assemblyman who was convicted of extortion and other crimes. So now, in the "Law and Order" episode, there's this body that's discovered in the Hudson River. It leads to the uncovering of an entire scandal, a judicial corruption scandal.

And in the show, a judge in Brooklyn is shown socializing with a bald Indian-American lawyer. The character's name is Ravi Patel, and this character accepts cash bribes from this person. Now, Mr. Batra, the real-life Mr. Batra, argued that because of the particular uniqueness of his name, ethnicity, and appearance, any of you who are watching that particular episode and familiar with the news, the real-life news surrounding him, would identify him with that character. Is this a strong case in your opinion?

Mr. ROSENTHAL: I think it's an extremely weak case. First of all, it's not enough that somebody simply thinks of a person when they read a work of fiction or watch a television show. They have to believe that this really is the same person. And the "Law and Order" episode was about something very, very different than the real life story that Ravi Batra claims he was involved in.

I think it's extremely unlikely that people who watched the "Law and Order" show see the end of the show and know that the show is based on things ripped from the headlines, but that are fictional and made up, is really going to believe that things that happened in the show to Ravi Patel really happened to the plaintiff.

MARTIN: Well, there's no way to measure that, right? You can't go out and do a survey of people who watched that to find out what the impact was of that show and if they made that link.

Mr. ROSENTHAL: That's true, and there's a part of the law of defamation is that the plaintiff has to show that the statement is of and concerning him, meaning that the statement that was made that he's claiming hurt him was actually about him. And in the fictional setting, courts are very hostile towards those kinds of claims. They will find that just because somebody has superficial characteristics that were similar to the character, that that's not enough.

MARTIN: Now, you have worked on cases like this in the past involving authors in works of fiction. Does the fact that this case is based on a "60 Minutes" TV episode make it any harder to prove? How is it different?

Mr. ROSENTHAL: I think it's really the same legal standard. People come to novels, I think, the way they come to television programs. They understand that it's fictional, and perhaps it's even harder for somebody like Mr. Batra to prevail in this case, because the show makes it so clear that the episodes are fictional.

MARTIN: But in a book, at least, there's more time to flesh out a character, and it might be harder to parse for evidence than, say, a novel, maybe.

Mr. ROSENTHAL: Maybe that is true, though often, the people who bring the claims based on novels are also rather tangential to the overall book. For example, there was a lawsuit brought by a person who claimed that the book "Primary Colors," the fictional work that supposedly is based on Bill Clinton, claimed that she had been defamed. And it was just a small part of the book, kind of like the character here is a small part in the television program.

MARTIN: Now, NBC, which airs "Law and Order," was also named in the suits. What is their stance? And also, Dick Wolf's attorneys, what is their side of the story?

Mr. ROSENTHAL: Well, I think their side of the story is what I just said, that the work is clearly denominated as fiction, that there's huge differences between the plaintiff and the character with the same first name that's in the television show. And they're not in the same borough. They don't practice the same kind of law. That the episode on television is about a murder, while the real-life story was about a judicial corruption scandal. So that a reasonable person is not going to believe that Ravi Batra really is the person on the television show.

MARTIN: But the judge said this could move forward, gives it some kind of credence. What implications would this have if Mr. Batra won this case?

Mr. ROSENTHAL: It would be a really big problem. I think it would lead to numerous cases by people who imagine themselves as being characters in books or television shows, or were the inspiration for such things, or had the same superficial first name, same superficial characteristics, so it's already a very big First Amendment problem.

MARTIN: Slippery slope, indeed. Edward Rosenthal, partner at the law firm of Frankfurt, Kurnit, Klein & Selz. Thanks so much, Mr. Rosenthal, for helping us.

Mr. ROSENTHAL: Thank you.

MARTIN: We appreciate it.

STEWART: Easter services were very interesting at the Trinity United Church of Christ, the place of worship for Senator Barack Obama, also the home of former pastor, Jeremiah Wright. Next on the show is someone who has known and taught Reverend Jeremiah Wright. He'll talk with us about the man that he has known for 35 years, his comments, and the congregation. That's next. This is the Bryant Park Project from NPR News.

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