Substantially Similar--A Blog on IP Issues, Writing and Film

Fictionalizing True Stories: As Important An Issue As Ever

by John Aquino on 01/27/18

I have written a book and articles on the legal issues surrounding fictionalization in fact-based films. And the topic continues to be of interest. In a Jan. 19, 2018 review of the second season of the British tv series The Crown, which is based on the life of Queen Elizabeth II, Richard Power Sayeed wrote in the (London) Times Literary Supplement of how the queen and then-Prime Minister Tony Blair spoke on the phone about how to frame a response to the death of Princess Diana. Only the most general information about the call had been reported. In writing the screenplay for the 2006 film The Queen, Peter Morgan had to imagine what had been said. Morgan noted that in later interviews Blair described what he and the queen had said and quoted verbatim from Morgan's screenplay. Having seen the movie, Blair probably subconsciously adopted Morgan's language, which was presumably more memorable than what was actually said. Sayeed suggested that future historians describing the incident would actually be quoting Morgan. And so, fact became fiction which became history.

It's an interesting variation on the newspaper editor's maxim in John Ford's The Man Who Shot Liberty Valance (1962): When the legend becomes fact, print the legend. But it also addresses the question I sometimes get in presentations I've given on this topic: doesn't everybody know that it's a movie and they make things up? I usually answer by asking, what if the only knowledge you have of the person portrayed in the movie is the movie. When you hear his name, won't you say, "Ah yes, he's the one who betrayed his regiment!" Or I give the example of a client who in a book manuscript she asked me to review discussed the Scopes "Monkey Trial" of 1925, saying that he had been arrested in his classroom for teaching evolution. That scene was invented for the 1960 movie Inherit the Wind and never actually happened. And here, with the movie The Queen, former Prime Minister Tony Blair evidently believed that he had said what a screenwriter imagined he said. It has something to do with the meaning of truth.

The legal issues continue. Olivia De Haviland, who is now 102, has sued the makers of the tv miniseries Feud, which recounted the feud between Bette Davis and Joan Crawford that blossomed during the making of What Ever Happened to Baby Jane (1962). De Haviland claims that the portrayal of her in the miniseries was false, noting that she did not say the things the series shows her as saying. The judge refused to dismiss the case, but recently a number of groups have come forward supporting the filmmakers. ( https://www.hollywoodreporter.com/thr-esq/mpaa-netflix-support-fxs-defense-olivia-de-havilland-1078617 ).

The complaint of people like De Haviland dates back at least to the time of Queen Elizabeth I who had the historian Sir John Hayward hauled before the Star Chamber for putting words in the mouths of her ancestors. Perhaps the court will rule in De Haviland's favor. Perhaps not. If it does, and the decision is upheld on appeal, it will change the practice of courts to grant filmmakers some flexibility in compressing time, creating events that may not have actually happened but are true to the spirit of what happened, and to create composite characters.

The practice of filmmakers when dealing with historical facts is generally to compress and composite. They also strive to find dramatic tension. The 2012 movie Argo was based on the CIA's attempt to rescue a smaller group of Americans hiding in the Canadian Embassy in Iran during the 1979 Iranian hostage crisis. Agent Tony Mendez employed a plan to create a fake Canadian science fiction film, convince the Iranian revolutionaries that he was seeking permission to shoot the film in Iran, and then blend in the six Americans hiding in the Canadian Embassy with Mendez's supposed crew. Up to the end, the film was relatively faithful to the facts. The problem for the filmmakers was that Mendez's plan worked perfectly. Mendez and the six Americans simply got on the plane and left Iran. Not very dramatic. And so the filmmakers had the revolutionaries discover the CIA plot at the last minute and chase the plane in jeeps, shooting at the plane as it took off. Something that you imagine would have been noticed by the other passengers.

Other films address the issue of fictionalization with variations on the Argo model. The 2017 film The Darkest Hour portrays the first month of Winston Churchill's prime ministry in 1940 with the Nazis poised to cross the English channel and conquer England as it had most other countries in Europe. The film begins with members of Parliament denouncing Prime Minister Neville Chamberlain for his attempts to appease Hitler and forcing him to resign in favor of Churchill, who is magnificently played by Gary Oldman. To create tension, the film shows Churchill as the lone voice in his war cabinet, which includes Chamberlain and his protege Lord Halifax who are pushing for a negotiated peace with Nazi Germany. Churchill begins to doubt himself until he goes on a subway train and talks to the people. The passengers resist the idea of seeking a peace with Nazi Germany. Emboldened, Churchill seeks the support of his sub-cabinet, which reacts as the passengers did. Further emboldened, Churchill tells his war cabinet he will not approve peace negotiations with Germany, and even Chamberlain supports him. England stands alone and fights the Nazis for a year until the U.S. joins the war in December 1941.

The tension in the war cabinet is at odds with the opening scene in which the Parliament forces Chamberlain, seen as the appeaser, from power. There was discussion in the war cabinet of inquiring about peace terms with the Nazis, but Churchill prevailed. Churchill did go and meet with people on the streets on occasion, but the subway ride never happened. He did seek the support of his sub-cabinet, but it was a strategy prompted by Churchill's strength and confidence, not out of desperation.

Another Churchill film, this one titled Churchill and starring Brian Cox, also distorted facts to create dramatic tension. Unlike The Darkest Hour, it was not even true to the spirit of what happened. It shows Churchill opposing the Normandy invasion because he is afraid it will fail and openly confronting General Eisenhower until he has an epiphany at the end of the film. According to the filmmakers, the movie was based by a sentence in the diary of Churchill's wife in which she wrote that he worried about the thousands of men who would be killed. But in actuality, Churchill was the invasion's prime mover., advocating it almost two years before it happened. All of the scenes are completely made up because nothing close to them ever happened.

Yet another film related to Churchill, although he is not shown and Germany is not mentioned, is Dunkirk, which graphically recreates the terror of being under attack and the risks the private boat owners took. However, virtually every character is a composite or completely fictitious.

Two older films, both titled The Gathering Storm, one starring Richard Burton and made in 1974 and the other starring Albert Finney and made in 2002, cover the period just before that of The Darkest Hour, and are more straightforward in their presentation of fact.

A final word on The Darkest Hour. The disclaimer at the end of the film is simpler than those of many fact-based films. It states, "Although based on fact, some of the characters and events are fictitious." It also has Dunkirk as part of the plot, but it seems to happen as an afterthought and not as part of the British people's support of the war--just as the fictitious people on the train support Churchill.

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The Circus: Gone But Not Forgetten

by John Aquino on 07/17/17

The most famous circus of the world--Barnum & Bailey--stopped performing just over a month ago. There was a great deal of media coverage of the event. But now, a month later, the world goes on. This could be seen as justifying the decision of "the greatest show on earth" to close. In this 21st century world of superhero and fast and furious car chase movies, reality television and a 24/7 news cycle that can air footage of beheadings by terrorist groups, a circus that was a phenomenon over 150 years ago may no longer have a place.

Maybe not a physical place.

I am no fan of circuses. I remember my father taking my brother Jim and me once and our having to go home because a clown made me cry. A man I worked for told me of the horror he experienced when he did the expected fatherly thing and took his son to the circus. "It was like being trapped in a Fellini movie. Midgets! Dwarfs! Ladies with beards!"

But the idea of a circus was special. It was basic entertainment before movies and television, appealing to a broader audience than Shakespeare and Ibsen and Rossini and Wagner, more wholesome than Minsky.

Movies realized this. Charlie Chaplin's 1928 silent "The Circus" is less well remembered than "The Gold Rush" or "City Lights" or "The Great Dictator" but in as many ways equally as good, more compact, more efficient, filled with the genuine affection of the greatest movie clown. Carol Reed's "Trapeze" (1956) placed former acrobat Burt Lancaster in the role of a crippled aerialist trying to help a younger man (Tony Curtis) do the triple somersault. Cecil B. DeMille, master of the movie epic, directed a 1952 movie in cooperation with Barnum and Bailey called "The Greatest Show on Earth." It has been derided by many as the worst movie to ever win the best picture Oscar. I like it. It has a an all-star cast that includes Charlton Heston, James Stewart, Cornel Wilde and Betty Hudson, a circus train wreck that is still pretty convincing even in this computer-generated imagery world, and a story that if it were a book would be called a page-turner.

Even on Broadway, there was "Barnum," a 1980 musical with a score by Michael Stewart and Cy Coleman that tells P.T. Barnum's story. Not all that well remembered, it ran over 800 performances and has a jaunty, underrated scope ("Join the circus like you wanted to when your were a kid").

The idea of a circus has affected these other media for a reason that was best articulated in a tv movie called "Barnum," again starring Burt Lancaster, this time playing P.T. Barnum. Lancaster was 73 at the time, four years before he died, and too old for the role by 30 years. But at the end of the movie, speaking as Barnum, he talks to the camera, to us, and explains why Barnum will be remembered. "I invented the audience. I invented you."

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Voice-Address: Still Essential for Journalists

by John Aquino on 07/17/17

One of the most important things a journalist should master is voice-address. It was taught to public speakers and writers from the time of Aristotle into the 20th century. When I have managed or taught journalists, young and old, I have emphasized it. In talking to some journalists recently, I have received the impression they haven't known what I was talking about.

Voice-address consists of asking who I in writing the article am, who I am writing for, and what am I trying to get them to do? Am I writing in my own voice in an op-ed piece, am I a writer for a lobbyist or an association, am I a more neutral/objective voice? Am I writing for a professional readership, a general readership, a targeted group of voters or investors? Am I trying to get them to vote in a particular way, to buy a product, to contact their congressional representative, to know something about an event or issue or subject area to help them do their job better?

Determining these things affects everything that a writer does next, from the vocabulary used to the length of the article. The more one writes and the more one hears from or talks to those he or she is writing to, a picture of the reader begins to take shape. Sometimes the writer develops the work for a particular person or a composite person or a group of people. But he or she knows how they speak, their educational level and what is important to them.

In the 21st century, the issue of a divided readership becomes more and more likely. A journalist can write an article for a newspaper with a circulation of 70,000 and then see it posted on the internet where it could reach millions. Ideally, the journalist should review and revise for any change in audience. For news pieces, delay is unthinkable. In writing a news piece, the journalist should write for both audiences.

The worst thing he or she can do is consider the less distinct audience as a shapeless mass. If one is writing to get people to invest, is the internet audience an investor who is similar to the circulation of the investor print publication in which the article originally appeared? If one is writing for a professional audience to educate them about particular event and the article will also be placed on a general interest website, will the journalist's goal for the reader of the article on that website remain the same as for the original publication and will the journalist's conception of the reader of the article remain the same?

If the answer to any of these questions is no, then the article should be rewritten for the different audience. An article is a crafted thing. It is a living thing. If any element of the voice address element changes, then the article should be rethought. If time passes between the article's publication and its re-publication, the article needs to be reviewed before the republication.

The latter instance has legal implications. Say a news article written for a professional publication in April is posted on a general interest website in May. Say it states a company is under investigation by a government agency, but the investigation was called off by the end of April. The article wasn't changed for posting on the website and, due to the statement of the investigation, the company's stock falls. The company sues the publisher of the article and the owner of the website.

When a complaint for defamation is filed against a publisher, the publisher responds, the plaintiff responds to the response and then the publisher usually moves to dismiss. When an individual who is not a public figure sues, he or she has to prove negligence. When a public figure or corporation sues, which covers most of what journalists write about, they must show absolute malice, which is knowledge that the statements in the article are false or reckless disregard as to whether they are true or false. Republication of the statements in the article without verifying that they are still true could be considered absolute malice.

When you write, consider voice-address and all of its implications.

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Memorial Remembrances of Philomena Aquino

by John Aquino on 05/07/17

This is the eulogy I delivered for my mother on April 25, 2017 at St. Ann Church, Washington, D.C.

It has been so overwhelming for me to read family members and friends write on Facebook and hear them in person referring to our Mom, Philomena Zappi Aquino, as an angel. It has special meaning to me because that is my first memory of her--coming into our room at night, with the light from the hall behind her bathing her shoulders and angelically crowning her head. Today, she surely is an angel. But throughout her entire life she acted like an angel in so many ways.

She was like a guardian angel, watching over us, caring for us, giving us guidance and hope. If you had a problem, she had a problem. And this was true for her children, her grandchildren and great-grandchildren, her brothers and sisters, her nieces and her nephews.

I remember her brother Pat telling us that after her wedding he, his brother Sam and their sisters Mary, Edith and Joe stood and cried because their elder sister had always been there for them and they would miss her so. When her grandson Robert Pascucci wanted to go to California to look into working in films, Grandma went with him. Now Grandma never possessed a credit card and as a result they had difficulty renting a car, but in the end they bopped around Hollywood together, the ultimate road trip. Her niece Linda in Texas wrote that it was our Mom’s example and advice that inspired her to get her Master’s, and all of her nieces and nephews knew that if they needed help they could dial “A” for Aunt Phil Aquino. Just a few years ago, Mom heard that the ring bearer at her wedding, who had gone on to become a monsignor, was dying. She wrote him and said she would be happy to pay his way to Washington and that she would take care of him in his last days. She was 95 and he was 75, and she was going to take care of him. And Mom has continued to take care of her son James—his cremains will be buried with her in her coffin today.

Mom was generous, kind and, like an angel, also fearless. It never dawned on her that that something couldn’t be done. Our Dad used to recite a poem that went,

Everyone said that it couldn’t be done,

But he with a chuckle replied

That maybe it couldn’t but he would be one

Who wouldn’t say so till he tried.

So he hurried right in

With a bit of a grin on his face,

If he worried he hid it.

He started to sing as he tackled the thing that couldn’t be done

And he did it.

Dad recited the poem. Mom did the poem. She lived the poem. She was the poem. Mom spoke Italian before she spoke English but went on to earn a bachelor’s and a master’s degree in English and teach English language and literature. She drove until she was 95, she mowed her own lawn until she was 98. When her children sent her to Italy in the wonderful company of her brother Sam, his wife Barbara and their daughter and Mom’s goddaughter Mary for her 70^th birthday, she was the one who insisted that they climb the Spanish steps. I remember one evening Deborah and I were at Mom’s house for dinner and she said, “Will you go up to my bedroom, open the window and reach out and pull a strand of ivy that is growing up the brick. I’ve been working on getting rid of the ivy. I've been stretching out and I’ve gotten most of it but I’ve stretched and stretched and I can’t quite get the last bit.” I said, “Mom, I’ve going to come to see you and find you lying on the front lawn!” We got her one of those necklace buttons to push for an emergency. She fell and fractured her pelvis and didn’t tell anyone for three days, even though we called her every day. We said, “Mom, why didn’t you push the button.” She said, “Why would I press the button. I could get up.”

In addition to watching over us and being fearless, she was like an angel in other ways, one of which was that I actually thought sometimes that she could fly. She would spend the day teaching students and helping them, and then fly home and care for a dying husband, care for an ailing mother, and feed and help her children do homework. It was like she was in three places at once, and in each place she was helping someone.

Mom lived a long and beautiful life. At every birthday party after she was 65, I, with my pigeon Italian, would toast her, saying “Cent’anni, ” which means may you live 100 years. And she would look at me, smile, and say, “Bite your tongue.” When she turned 98, I started toasting, “Cent’anni, et altro cent’anni”—a hundred years and another hundred years, and she shot me such a look.

And, as always, mother knew best. As the saying goes, growing old isn’t for sissies. I remember reading that in ancient Rome, the life expectancy was 30 but a few people lived to be 100, maybe 105. Today, the life expectancy is in the high seventies, but the body still doesn’t last much beyond 100. It was difficult, I know, for Mom, who was so used to taking care of other people, to have to have people take care of her. It was frustrating for her not to be able to talk to family members on the phone and to give advice and help out. But she went with the flow—one of her favorite expressions—and kept her good humor. And she was often very funny. We showed her the invitation for the 90^th birthday celebration of her brother Pat, who was 10 years younger than she, listing some of his many accomplishments, and she said, “Gee, he really got to be a big shot.”

Now, she’s gone, but not really. My wife Deborah quotes a statement of St. John Chrysostom (shared with her by a dear Benedictine friend) that when a loved one dies they are no longer where they were, they are where you are. Mom is here in our hearts and minds, and she is elsewhere. She told us so herself in a way. When Mom was still able to talk, she was lying in the hospital bed in her living room speaking to her daughter Jean and her husband Bob on the phone, and they said, “Mom, you’re still so young at heart. What do you want to do? What do you want to be?” There was a pause, and then Mom said, “Guardian of the Galaxy.” And what had happened was the television was on, and there was an ad for the film “Guardians of the Galaxy,” the type rolled across the screen and Mom read it aloud. The more I thought about what she had said, the more sense it made.

Mom, you’ve always been like a guardian angel for all of us. If anyone can be a guardian for the entire galaxy, it’s you. We miss you. We love you. We know you’re with your loved ones in heaven and are watching over us—and the galaxy—and we know you’ll keep doing your usual excellent job.

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Robert Osborne, Late Friend of a Friend

by John Aquino on 03/09/17

Robert Osborne, main host of the cable, we-have-no-commercials, classic movie station Turner Classic Movies (TCM), passed away last week. I didn't know him, but he was a good friend to Richard DeNeut, my friend and client, who died just over a year ago.

My wife and I began watching Robert (his good friends I am sure called him Bob) on TCM in the mid-90s, soon after the station began and the exact time we bought our first color television set. He was a refreshing host--knowledgeable, a good interviewer, and correct in what he said the vast majority of the time. His questions to an actor or actress he interviewed were never gushy, never superficial and never overly deep or complex. He had been an actor and a journalist and knew a lot about films.

I remember his opposite, a university film professor interviewing Gene Kelly, the actor-dancer-director on a public television show about movies. The man told him a story of how Kelly went on performing a particular movie until his feet were bleeding. Kelly listened to him stone-faced and then said, simply, "That's apocryphal."

Robert Osborne had a winning way of talking with these movie stars and never to them: Betty Hutton, Charlton Heston, Tony Curtis, Alice Faye and Mother Dolores Hart, who left movie stardom in 1963 and joined the cloistered abbey, the Abbey of Regina Laudis in Connecticut.

Dick, an old friend of Mother Dolores too, co-wrote her autobiography. I was their attorney. His is friendship with Robert at least got his foot in the door to arrange for Robert to interview Mother Dolores to help promote the book. He was gracious and at ease with her and she with him. She was the "guest programmer" for the night and they watched and discussed "The Song of Bernadette," "Lisa," in which she starred with Stephen Boyd, and "The Rose Tattoo," starring her "Wild Is the Wind" co-star Anna Magnani.

I never met Robert Osborne, but I told Mother Dolores and Dick about my one tangential connection. TCM showed "Where the Boys Are" 10 years ago. Dolores Hart was one of its stars, three years before she left the movies. The alternate host to Robert said something like, most of the movie's stars went on to better things except for Dolores Hart who became a nun and joined a convent, although it is unlikely she engaged in "wet habit" contests there. My wife's Mom, Adelaide Emken Curren, was so upset at this disrespect that she had me write TCM and say, "What do you mean she didn't go on to better things!" I got a form letter back thanking me for my message. Two weeks later, TCM showed "Where the Boys Are" again and Osborne was the host. While he didn't apologize for what the other host had said, he spoke with obvious respect and appreciation for Mother Dolores' work and what she is doing now. He was a very gracious fellow indeed and will be missed.

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