There is an interesting lawsuit that is an outgrowth of the new “Wolf of Wall Street” movie over the character Nicky “Rugrat” Koskoff, described in the lawsuit as the ultimate loser. The problem is that lawyer Andrew Greene says that the character is based on him and makes him look like “a criminal, drug user, degenerate, depraved, and/or devoid of any morality or ethics.” Greene, an inactive member of the California bar, is suing for $25 million for alleged defamation.

Greene used to be the head of the corporate finance department at securities brokerage firm Stratton Oakmont. Greene has a good basis for the association with the character since the memoir by brokerage firm founder Jordan Belfort used Greene’s name. Rugrat is portrayed as a scum bucket who knowingly launders money, engages the services of a prostitute, and displays all of the vices of “a criminal and drug user with misogynistic tendencies.”

Even Greene’s status as a follicle-challenged male is listed as both a point of identification and defamation:

At all times relevant hereto, Plaintiff frequently wore a toupee.

In multiple scenes in the movie, Rugrat’s use of a toupee is accentuated and mocked in an egregiously offensive manner. The motion picture introduces Rugrat by referencing his “piece of shit hairpiece.” In another scene, investigators ask whether his hair is real. Characters are also seen attempting to grab the toupee in a scene.

Upon information and belief, in another scene, the character Donnie Azoff says “Fucking Rugrat that wig-wearing faggot. I can’t believe that fucking guy. I want to kill him. Jordan Belfort’s character then says, Swear to God, I want to choke him to death. Irresponsible little prick.”

The case bears striking resemblance to the lawsuit in Muzikowski v. Paramount Pictures Corp. where a securities broker and insurance salesman named Robert Muzikowski sued over a film based on his character. The film was based on the book ‘Hardball: A Season in the Projects” which used Muzikowski’s name as a coach and discussed his life. The movie rights to the book were purchased and the Defendant produced the movie “Hardball.” It did not mention Muzikowski by name (referring to the coach as Conor O’Neill) and included the disclaimed in the film that “[w]hile this motion picture is in part inspired by actual events, persons and organizations, this is a fictitious story and no actual persons, events or organizations have been portrayed.” THe movie however added highly negative aspects to the character.

Despite this disclaimer, Muzikowski contends that O’Neill is in fact a portrayal of him. He focuses on numerous facts revealed in Coyle’s book about his own life. After his father died, Muzikowski dropped out of college for lack of funds. He later became an alcoholic and illegal drug user. One night Muzikowski was arrested for his involvement in a bar fight, which left a permanent scar on his hand. After being bailed out, Muzikowski began to turn his life around. Later, he became active in Little League. As a coach, Muzikowski drove a blue station wagon, made frequent use of profanity, and sometimes “los[t] it.” On one occasion, Muzikowski learned that one of his players had been killed in a gang-related shooting. He later spoke at the boy’s funeral.
The O’Neill character in the movie version of Hardball experiences almost exactly the same things as the real Muzikowski. The only differences, in Muzikowski’s opinion, are unflattering and false as applied to the real man. O’Neill never breaks his drinking habit, while Muzikowski has not taken a drink for 17 years. O’Neill, unlike Muzikowski, scalps tickets and gambles. He commits such crimes as battery, theft, criminal destruction of property, disorderly conduct, and drinking on the public way. From a professional standpoint, O’Neill falsely represents himself as a broker, even though he has no license. O’Neill uses his father’s death to deceive others into giving him money, and he is portrayed as having no interest in children or their well-being in contrast to Muzikowski’s deep commitment to young people. In fact, Muzikowski became involved in Little League solely out of that genuine concern for children, while the O’Neill character does so only to pay off a gambling debt.

Dianne Wood on the United States Court of Appeals for the Seventh Circuit did reverse a summary judgment against Muzikowski but upheld the dismissal of his per quod action as having been taken without sufficient proof of damages. The court noted that the movie makers were entitled to any innocent construction of terms or scenes as a defense to defamation. However, that would have to be proven:

In our view, Muzikowski might be able to produce evidence showing that there is in fact no reasonable interpretation of the movie that would support an innocent construction. He may be able to show that no one could think that anyone but him was meant, and the changes to “his” character, far from supporting an innocent construction that O’Neill is a fictional or different person, only serve to defame him in the ways already discussed. We conclude that Muzikowski’s allegations, read in the light most favorable to him, entitle him to the chance to prove his claim under a defamation per se theory. As the case develops further, of course, it is entirely possible that Paramount will be able to produce enough facts to support its “innocent construction” argument. At this stage, however, we believe it was premature to reject Muzikowski’s case.

I do not believe that he ultimately prevailed in the action.

For a defamation per se action, Greene could claim that the film meets a per se category of (1) commission of a criminal offense; (2) infection with a venereal disease; (3) inability to perform or want of integrity in the discharge of duties of public office; (4) fornication or adultery; or (5) words that prejudice a party in her trade, profession, or business. These categories are expressed differently in different states but are generally the basis for a per se action. The status of Greene as a lawyer makes the professional and ethical issues more prominent and potentially actionable. However, he faces a serious challenge in proving not just the falsity of the statements but the association with him.

Greene’s lawyers insist that he “worked diligently to create an environment of regulatory compliance and oversight at Stratton Oakmont.”

Many studios prefer to wait for main characters to die since the common law has long maintained that you “cannot defame the dead” — a rule that I have long opposed. OF course, Greene is very much alive and this character is clearly engaged in criminal offenses and acts of moral turpitude. The question is whether the disclaimer and different name is enough. Notably, in Muzikowski, the court relief on the well-known Bryson case to dispense with defenses based on the fictional portrayal:

“[S]imply because the story is labeled `fiction’ and, therefore, does not purport to describe any real person” does not mean that it may not be defamatory per se. Bryson, 220 Ill.Dec. 195, 672 N.E.2d at 1219. In Bryson, the plaintiff sued a magazine publisher over an article appearing in its fiction section. The article featured a character who also had the last name of Bryson (but not the plaintiff’s first name), and who was described as a “slut.” The article was set in southern Illinois, where both the plaintiff and the author of the article resided, and the plaintiff alleged 25 other physical attributes and life experiences she shared with the character. Under these circumstances, the Illinois Supreme Court held that the plaintiff should have the opportunity to prove that the character bore “such a close resemblance to the plaintiff that reasonable persons would understand that the character was actually intended to portray the plaintiff.” Id. In light of Bryson, the mere fact that Paramount labeled its movie “fictitious” is not enough to shield it from an Illinois defamation action.

This has the makings therefore of an interesting case. Greene will be the underdog and presumably the company will not be using the line from Jordan Belfort: “Was all this legal? Absolutely not!”