Carole Baskin Will Almost Certainly Lose Her ‘Tiger King’ Lawsuit
Tiger King 2, the follow-up to Netflix’s hit series about big cats and the bizarre characters who work with them for a living, is set to hit the platform in two weeks. But two of the original’s central subjects, Carole and Howard Baskin, are suing the streamer to try to stop that from happening.
Since Tiger King became everybody’s favorite weird pandemic documentary last year, the Baskins have been outspoken about how much they hated it. (Part of that is understandable: Sources in the documentary float the idea that Carole Baskin may have played a role in the disappearance of her first husband, an allegation she denies.) And though the Baskins refused to participate in Tiger King 2, the trailer indicates that they will still appear in it in some way. Their lawsuit is an attempt to change that.
Their civil complaint—filed against Netflix and Royal Goode Productions, the producer of both series, in a Florida court on Monday—hinges on a pair of “Appearance Releases” the couple signed while Royal Goode was filming the first Tiger King. The Baskins claim those releases permitted Royal Goode to use footage of them for one project, and one project only. Despite that, Royal Goode appears to have gone ahead and included footage of the Baskins in Tiger King 2—and that, the Baskins argue, is a breach of contract. (A representative for Netflix declined to comment for this story.)
The Baskins asked a judge for a temporary restraining order that would prevent Netflix from releasing Tiger King 2, but their request was reportedly denied. Still, they haven’t given up: They’re now seeking a preliminary injunction, which could allow them to block the series’ release before going to trial.
To figure out if the Baskins have a case, I called up Dale Cohen, an expert on the laws governing documentary filmmaking who works as the director of the Documentary Film Legal Clinic at the UCLA School of Law and as special counsel for PBS’ Frontline. He read over the Baskins’ lawsuit and shared his thoughts on whether or not they have a shot at winning it. His take, in a nutshell: Their chances are slim.
VICE: The Baskins are basically saying, “We signed agreements for one project. You're using footage that was taken under those agreements for a separate project. But we didn't explicitly, legally authorize that—and therefore, you've breached our contract.” Would that actually constitute a breach of contract, assuming that what the Baskins allege is true?
Dale Cohen: No, I don't think so. Based on my experience, releases typically are designed to protect filmmakers. They give filmmakers the right to use the material in their project or projects. And they also release [filmmakers from liability for] claims that might be brought by a plaintiff like the Baskins.
It would be very unusual for the original release to have contained a clause that said, “We will only use the material from the interviews in Tiger King 1.” That is certainly not a release I've ever drafted, or the type of release I've ever seen. Since releases generally are permissive to the filmmaker, the fact that the filmmaker may have gone beyond that permission doesn't necessarily mean that they've breached the contract. It just means they lose the protection [from being sued over the new project].
The [Baskins’] lawyers are correct that the rights were only granted for “a” motion picture. But it is just not true that documentary filmmakers have to have a release from everybody before they put footage or interview transcripts or information into their documentary films. That is a misconception that a lot of the public has, and obviously these lawyers as well.
Why is it that a filmmaker doesn’t have to get a subject’s explicit permission in order to feature them in a documentary?
The easiest way for me to explain this is by analogy. When a newspaper reporter interviews somebody, they don't get a release from them. When a television reporter interviews somebody in a public place—particularly somebody as public and sophisticated as Carole and Howard Baskin—they don't get a release from them. The law doesn't require a release before you can include information or the content of an interview in an expressive work or a journalistic work. I know Tiger King is only arguably a journalistic work in some people's minds, but I think it is, for purposes of the law and the First Amendment.
It has become sort of a standard practice among many film production companies and insurance companies, and maybe even platforms like Netflix, [to have subjects sign] releases, because the releases tend to protect [these entities from being sued]. But if you go ahead without a release, that's not necessarily a violation of the interviewee’s rights, particularly if they knowingly gave you the interview. You're not getting a release from me in connection with this interview, but you're going to include the interview material in your article. That's perfectly lawful.
The Baskins had asked for a temporary restraining order to prevent Netflix from releasing Tiger King 2, but they were denied. Why do you think that happened?
A temporary restraining order, even outside of the realm of First Amendment-protected activities like documentaries, is considered to be an extraordinary remedy—and courts are very reluctant to grant them. The standards are very stringent, and require not only proof that you've got a strong claim, but also that there would be irreparable injury to the claimant that can never be fixed with money damages or other kinds of remedies later. That's what the judge said there was not enough evidence of.
[The Baskins] wanted to stop Netflix from distributing the film and showing it to the public. And First Amendment law is extremely strong in requiring courts and plaintiffs to make really, truly, super-extraordinary showings of potential harm before they can get that kind of prior restraint. It's very unusual to get that kind of restraining order before a film, or a book, or a newspaper story would actually be published.
Now that a restraining order is off the table, the Baskins are trying to prevent Netflix from releasing Tiger King 2 through a preliminary injunction. Do you think the Baskins will get one?
Preliminary injunction is something that is designed to maintain the status quo until a full trial on the matter can be heard. It typically only happens after there has been what they call an “evidentiary hearing,” where witnesses will actually testify. That takes time. It seems possible—but unlikely—that that will get done before the film launches.
What the Baskins are asking for is to stop the distribution of Tiger King 2. That would be a dramatic ruling by a court, and obviously would have a tremendous impact not just on the production company and Netflix, but also on the public, which—whatever you may think about Tiger King 1—clearly has a strong appetite to see more of the story. I've been practicing law for too long to [speak with] super-certainty on these kinds of things. But it seems highly unlikely to me, based on the papers I've read thus far, [that the Baskins would get a preliminary injunction].
The Baskins wrote in their complaint that they’re seeking additional forms of “relief,” which, to me, seems like a vague way of saying monetary damages. Do you think they would be able to get damages?
As of right now, I don't see a particularly strong basis for them to even proceed with the claim for damages. In other, similar situations, the courts have rejected efforts to try to get recovery for reputational damage based on claims other than defamation. Jerry Falwell famously sued Hustler years ago about a parody ad—a fake Campari ad—that was clearly very insulting and gross. But the Supreme Court said, “If you're not going to prevail on a libel claim, you can’t recover damages for reputational harm.” And in this case, they have not brought a libel claim in connection with the first film.
One more thing: Even if they can prove a breach of contract, tying actual damages to that breach of contract would be very difficult for them, I think. The one thing they cited was that they'd lost revenue at their parks or in other activities. All of that relates to the publication and distribution of the first film. It has nothing to do with the breach that they're claiming now, in connection with the second film.
How do you think attorneys for Netflix and Royal Goode might respond to this?
Well, they will definitely bring motions to dismiss. [Ed. note: To put it as simply as possible, that means asking a judge to toss out a case soon after it’s filed.] It's also not unusual for filmmakers and journalists to bring what are called “anti-SLAPP” [strategic lawsuit against public participation] motions to try to defeat these kinds of claims.
Anti-SLAPP laws are designed specifically to protect First Amendment-protected activity—like documentary films—against claims that the law would deem to be specious or unfounded. In this case, clearly the lawyers for the production company and Netflix will reject the claim that they've violated the contract. Unless there is something in the contract that says, “We promise not to use this material for anything other than Tiger King 1,” then I don't see how there is a breach of contract here. And in that case, what you're left with is no real claim being brought.
What you just said essentially answers this question, but: Who do you think is going to come out on top in this lawsuit?
I admit to a certain bias because I work with documentary filmmakers. But I think that Netflix and Royal Goode will prevail in this case. And based on what I've seen so far, they should do so fairly easily.
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Drew Schwartz, Khareem Sudlow
