Joe Francis Defamation Lawsuit Against Piranha 3D a Bomb

You may have heard of the film Piranha 3D. If not, here’s a trailer. It certainly looks like…something. Basically, it’s a campy, intentionally (I hope) funny horror movie about Piranhas. And it’s in 3D.

One of the characters in the film is supposedly based on Joe Francis, the creator of the Girls With Low Self-Esteem Girls Gone Wild series of videos. The Piranha film portrays him in, how should I say, a negative light (contains some crude language, depictions of fish doing really bad things to people, and possibly spoilers). The movie does all of these horrible things to the Joe Francis stand-in, and apparently portrays the character in such a way as to give the audience the impression that he deserved to have all of these things happen to him. Apparently the film depicts him using illegal drugs, and filming underage girls.

Well, Francis’ lawyers have taken notice, and they’ve sent the studio making the movie a letter threatening to sue if the studio, or anyone else involved in the movie, takes any further action suggesting that the fictional character is meant to represent an accurate portrayal of Francis. The studio probably didn’t help their case when they didn’t immediate put a lid on the actor who plays the character saying in an interview “I get to play Joe Francis! Oh. Wait. For legal reasons, I’m supposed to say ‘I play someone loosely based on Joe Francis.’”

To be honest, if Francis does decide to sue over this, his claim might not be entirely frivolous. Defamation-in-fiction cases like this aren’t unheard of. Just a quick refresher – defamation is a false statement of fact about a person which is likely to cause them harm.

Works of fiction which are alleged to be based on real people, and portray those people in a bad light, have been grounds for defamation lawsuits in the past. The key question in such cases is whether a reasonable person, watching or reading the work of fiction, be likely to believe that the character is based on a real person, a case for defamation exists.

So, what about this case? Well, the movie involves the producer of a series of videos called Wild Wild Girls, and the character’s personality traits, and a few details of his biography, appear pretty similar to those of Francis (if a quick browse on Wikipedia is any indication). After laying this groundwork, it portrays the character engaging in illegal and despicable activities (according to the articles – I haven’t seen the movie yet). It wouldn’t be a huge stretch for somebody to watch this movie and think that the character is based on the real person, if they know anything about the real person.

Unfortunately for Mr. Francis, who may well have a real case for defamation, he has a bit of a track record when it comes to suing people who say not-very-nice things about him. After a news and gossip blog gave him a dubious award, he sent a rather nasty letter, which, in addition to legal threats, contained quite a few personal insults. Joe, you should probably let your lawyers do the talking.

Anyway, this whole case raises some interesting issues about free expression, and where parody ends and outright libel begins.

There’s generally nothing wrong with parodying a person in a work of fiction. And if that person is publicly-known, it’s almost certain to be constitutionally-protected, and plaintiffs in such cases have to jump a very high hurdle to prevail: they have to show that the speaker acted with “actual malice,” meaning that they knew the statement was false, or acted in reckless disregard for the truth (basically, they could have very easily confirmed or disconfirmed the facts in their statement, but chose not to).

In this case, there have for years been widespread rumors that Francis engaged in many of the activities that his supposed movie surrogate engages in (minus being eaten by mutant piranhas, presumably), so it would be hard to argue that the depiction of the character in the movie, if he is indeed meant to portray facts about Francis, was created with actual malice.

In the end, though, it always comes down to practical concerns. This guy has made himself fairly publicly-known, and he’s in a business that many people think is quite unseemly – he’s going to be made fun of in the media. I’ve said this before: when you file a defamation lawsuit, the chances are very good that you’ll simply draw more attention to the claims that you’re suing over, and more people will hear them as a result. Let’s all say it together now – think before you sue.