United States: Three Point Shot

The Netflix miniseries The Queens Gambit exceeded all expectations when it was released on October 23, 2020. It became Netflix's "biggest limited scripted series ever," was nominated for and won two Golden Globes this past year, and received eighteen 2021 Emmy Award nominations, walking away with more than half of them. However, at the same time that this happy endgame was taking place, Netflix was hit with a defamation suit by a Georgian Grandmaster who objected to certain characterizations of her in the final episode. (Gaprindashvili v. Netflix, Inc., No. 21-07408 (C.D. Cal. Amended Complaint Sept. 20, 2021)). Since then, Netflix made its countermove, seeking dismissal of the action on First Amendment and other grounds.

For those unfamiliar with the wildly popular limited series, Netflix's The Queen's Gambit (based on the 1983 Walter Tevis novel) is a fictional portrayal of the rise of Elizabeth Harmon, a young female chess prodigy who learned the game to escape a challenging childhood and harness her inner demons, eventually entering the male-dominated world of elite competitive chess during the Cold War era. Besides telling a captivating story that sparked a renewed interest in chess in this country, the creator of the seven-episode miniseries tried to realistically depict the various structural barriers that impeded women's advancement in the gender-segregated world of 1960s chess.

In doing so, however, the creator and Netflix met a match of their own. The first female player to be awarded the title of Grandmaster in 1978, Nona Gaprindashvili ("Gaprindashvili" or "Plaintiff"), a now 80-year-old woman living in Tbilisi, Georgia, filed a complaint for defamation against Netflix, Inc. ("Netflix" or "Defendant") in September 2021 in a California district court. The claim centers on a single line of dialogue about her in a short scene in the miniseriesfinale. The scene at issue takes place while Harmon plays at the fictional Moscow Invitational of 1968. There, a tournament announcer speculates that Harmon's male opponents likely would not have adequately prepared to compete against her. The announcer explains:

"As far as they knew, Harmon's level of play wasn't up to theirs. [...] Elizabeth Harmon's not at all an important player by their standards. The only unusual thing about her, really, is her sex. And even that's not unique in Russia. There's Nona Gaprindashvili, but she's the female world champion and has never faced men. My guess is Laev was expecting an easy win, and not at all the 27-move thrashing Beth Harmon just gave him." [emphasis added]

The fictional announcer's remark that Harmon's male competitors might be familiar with Plaintiff, "but she...has never faced men" provided the crux of Gaprindashvili's claims for false light invasion of privacy and defamation per se. Plaintiff alleges the language is false and "manifestly defamatory" – as she claims she had played matches against the world's best male chess players by the year 1968, the year of the fictional Moscow Invitational, and thus the dialogue impugns her by claiming she did not face men or, rather, insinuates that she was inferior to men at this time. She proclaims that the offensiveness is "magnified" by her portrayal as a Russian when she has greatly "exemplified Georgian pride and independence." Plaintiff further claims the scene had been altered from the original novel (indicating Defendant's "actual malice" in portraying Plaintiff) and that similar intent can be inferred from Netflix's alleged refusal to issue a suitable retraction of the statement after the series was released. As a result, Gaprindashvili asserts the final episode has caused her "great distress" and her brand "egregious harm," causing damage to her profits and earnings and future losses of business opportunities in the chess world. 

Last month, Netflix presented its defense by arguing Plaintiff's claims are meritless and that the First Amendment protects the series creator's artistic license to include the line in the fictional work. Netflix's motion to dismiss asserts Plaintiff's claims should be stricken pursuant to the anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16, which prohibits litigation intended to intimidate or chill protected speech, or, alternatively, should be dismissed with prejudice under Rule 12(b)(6) for failure to state a claim. (Gaprindashvili v. Netflix, Inc., No. 21-07408 (C.D. Cal. Motion to Dismiss Nov. 1, 2021)). The anti-SLAPP defense presents an efficient way to dispense with such suits early on, a speedy, blitz chess-like way of litigating.

Anti-SLAPP (strategic lawsuits against public participation) motions succeed when two prongs of a test are met. The statute authorizes a special motion to strike if a cause of action against a person arises from any act of that person in furtherance of the person's free speech right in connection with a public issue, unless a court determines the plaintiff has established there is a probability that he or she will prevail on the claim. Cal. Code Civ. Proc. § 425.16 (b)(1).

Netflix believes it will be able to satisfy the first prong of the test by showing the miniseries dialogue is protected speech that was "made in a place open to the public or a public forum in connection with an issue of public interest." Netflix further alleges Plaintiff's claims fall squarely within the anti-SLAPP statute because the "creation of a television show is an exercise of free speech" and was made available to the public on its streaming platform. Moreover, Netflix contends the dialogue was made "in connection with an issue of public interest," as the definition of "public interest" broadly encompasses "any issue in which the public is interested." For one, Netflix stresses Gaprindashvili is undisputedly a world-renowned public figure, which makes her an issue of public interest. Additionally, Netflix asserts the various portrayals of sexism and gender-segregation are surely public interest issues under the statute.

If the first prong is met, the clock starts ticking for Plaintiff to demonstrate there is a probability she will prevail on each element of her claims. Does this mean the endgame is in sight for Netflix? Or will Plaintiff emphatically say, "Checkmate"?

Netflix maintains Plaintiff cannot establish she will likely prevail on the merits. In order to prevail, Gaprindashvili must prove three elements: (1) that there was a publication or broadcast of a false statement; (2) that, by clear and convincing evidence, the statement was published or broadcasted with actual malice; and (3) that either the publication or broadcast made a prima facie showing of false light invasion of privacy or a prima facie showing of defamation. Netflix asserts the first element cannot be met, as "a reasonable viewer would not interpret the fictional Series as making assertions of fact." To support its claim, Netflix points out The Queen's Gambit  is a fictional television series based upon a novel of the same name. Moreover, the streaming service argues that the creator did not intend nor hold out the series "to be a journalistic or documentarian account of real events, or even a 'docudrama'" by drawing attention to the end credits of every episode, which expressly state the program is a fictional drama. In any event, Netflix claims the statement at issue is not defamatory because it is "substantially true"; according to the creator, Plaintiff's participation in high-level chess tournaments against men largely occurred in the 1970s.

Similarly, Netflix asserts the second element – a demonstration of Netflix acting with "actual malice," by clear and convincing evidence – cannot be met. To support its position, Netflix includes evidence to the contrary. Netflix's motion reveals The Queen's Gambit  creator went so far as to eliminate other commentary, originally included in the novel, that he, himself, deemed to be negative towards Plaintiff (e.g., the novel states Plaintiff "was not up to the level of the fictional tournament even though she had 'met' the Russian Grandmasters before."). In place of the original language, the creator actively chose to recognize Plaintiff as the first female world champion of chess and highlight the presence of sexism and related barriers that women players had to endure in the Soviet Union at the time. Furthermore, Netflix discloses the creator actually consulted with two chess experts, who reviewed the scripts on multiple occasions, and, as such, contends Plaintiff cannot show by clear and convincing evidence Netflix acted with actual malice.

To complete her prima facie showing of false light invasion of privacy, Gaprindashvili needs to prove the language at issue is highly offensive to a reasonable person. According to Netflix, Plaintiff will not be able to do so, as no reasonable viewer watching the seventh, and final, episode of the miniseries would interpret the statement, "There's Nona Gaprindashvili, but she's the female world champion and has never faced men" as defamatory. Rather, Netflix argues a reasonable viewer would understand it is yet another example of the inherent sexism and gender-segregation that existed during the 1960s. Netflix further asserts that "even if the Line implied that Plaintiff was inferior to male players (which it does not), such an implication would constitute a non-actionable statement of opinion," rather than a statement of fact.

Lastly, to complete her showing of a prima facie case for defamation, Plaintiff must show injury to her reputation by pleading and proving special damages resulting from the alleged defamation, which Netflix alleges she cannot do because she cannot prove the statement in the series finale was the proximate cause of any claimed injuries to her brand and reputation. If anything, Defendant believes Plaintiff would only be able to show she has become more popular since the debut of The Queen's Gambit.

Just this past month, however, Gaprindashvili filed her opposition to Netflix's anti-SLAPP motion. Plaintiff does not contest that the first prong of the anti-SLAPP analysis has been met. Rather, she alleges the evidence she has submitted and the arguments she has made hold enough merit to substantiate her claims under prong two.

Without going into too much detail about her multi-pronged defense to the motion, Gaprindashvili contends that false light invasion of privacy and defamation can arise in fictional works and that both the creator of the miniseries and Netflix made a false statement when they said she "has never faced men." Plaintiff asserts whether she faced men prior to 1968 is a factual question, which invokes either a "yes" or "no" answer. According to her motion papers, she had, in fact, faced several men by that time in notable international tournaments. To bolster her argument, Gaprindashvili further points out the Queen's Gambit creator knew she had played against many men prior to 1968 because he actively removed the statement, "[Plaintiff] had met all these Russian Grandmasters many times before," which appears in Tevis's novel, and replaced it with the language at issue.

Plaintiff repeatedly points to the creator's use of the word "largely" in the following statement from Netflix's arguments, "Plaintiff's participation in high-level chess tournaments against men largely  occurred in the 1970s," as one clear indication of actual malice as well. She argues the creator must have been well aware she had played against at least some  male chess players before given his decision to qualify the statement with the word, "largely."

Further, Plaintiff opposes Netflix's argument that "no reasonable viewer would take the language at issue to impugn Plaintiff for having never played against men as a sexist imputation that she was inferior to men." Although the miniseries does attempt to highlight gender segregation and sexism in the Cold War era by having Harmon, a woman, beat men in chess, Gaprindashvili highlights it does so by telling a story of an American  woman beating Russian men. Not only does that diminish the real-life role Gaprindashvili, a Georgian woman, played in removing gender barriers in the world of 1960s chess, it purportedly exploits and disparages her historical accomplishments.

In late December, Netflix filed its reply, reiterating its arguments and contending that Plaintiff failed to meaningfully address the controlling cases cited in Netflix's papers and otherwise misstates the relevant legal standards.

A look at the court docket reveals the motion hearing is set to take place in the new year. Until then, we must wait to see how this match plays out. Will Gaprindashvili be forced to resign or will there be an evidentiary draw that moves the case forward toward trial? Make sure to follow along to see the parties' next moves. 

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