Disclaimer required?

by Michael S. Kaplan, published on 2005/10/09 03:01 -04:00, original URI: http://blogs.msdn.com/b/michkap/archive/2005/10/09/478650.aspx


Law & Order, a television show that is now in its 16th season, is one that I have pretty much watched since it first came on the air. Many people have theorized as to why the show has lasted as long as it has, but one of the reasons given in the show's own marketing is that cases are inspired directly from the headlines. This particular reason is the one I am going to focus on here.

Over the years, every time the final credits ran, we would see a quick disclaimer come up:

This story is fictional. No actual
person or event is depicted.

Sometimes, the beginning of the show would also include a similar disclaimer, prior to the first scene:

The following story is
fictional and does not depict
any actual person or event.

Less often, in some cases they would be a bit more explicit in what they were trying to have a disclaimer for:

Although inspired by actual events,
the following story is fictional
and not intended to depict
any actual person or event.

And then in the single most graphically obvious example of a disclaimer being added, the first season episode entitled Indifference had the following disclaimer at the end:

Although some aspects of this story may
remind you of the Lisa Steinberg case recently
adjudicated in New York City, this episode and
its characters are fictional and the events and
actions portrayed do not reflect the actions of
any principals involved in that case. In the
actual case, the male defendant was convicted
of manslaughter, while all charges against his
female companion were dismissed. There was
no evidence of her involvement in physical
abuse of any child, or that any child was
sexually abused by either adult.

To my knowledge, this is the only time that the original inspiration of a case was explicitly called out.

If you look at the various disclaimers used and especially the extreme one, the pattern becomes obvious. It is not generally speaking the accurate depiction of facts that troubles the lawyers of the show. It is that distance between the facts proven in a New York City court and those depicted in a fictional dramatization that tends to make them worry. In other words, it is the very differences that are intentionally introduced that make them the most nervous that people will assume they are trying to make statements about the original case.

In Indifference, the writers took the Lisa Steinberg case and as usual changed many important details -- the lawyer in the NYC criminal courts (which would have made an interesting story when it came to trying a member of the District Attorney's office!) becomes a psychologist who is a Reichian therapist. What in real life was an illegal adoption is in this case a set of biological parents. And an interesting if somewhat frightening piece of the plot of the show has the woman being the one who is physically abusing the children, in a syndrome that causes it to make her feel empowered after she is herself abused by her husband (in other words "he hits her, and then she hits the chldren"). And then overlaid on top of all of that, the male actually does sexually abuse the daughter.

No wonder they wanted the extra disclaimer! Those extra differences that do distinguish the disturbing fiction from the deplorable fact are a good reason for the lawyers to be nervous about suggesting too much, and perhaps opening themselves up for a lawsuit based on the directions they took.

Even to this day, I wonder if the lawyers went far enough on this episode's disclaimer. When I first saw it back in 1990 I remember wondering whether the reason the charges were dropped against her was just for her testimony and whether the show might have some of the facts straight -- it seemed like too much "legalese" to think that there might not be something sinister, in my younger mind.

This gets us closer to the reason for having a disclaimer -- it is for when people might misunderstand, and then do the wrong thing with what is there.

Now it also can protect in the case where there is no misunderstanding. But that is usually not a cause for a lawsuit, if you know what I mean.

I do find it fascinating that people can market a show's plots as being "ripped from the headlines" and then think that a little text in the credits that many people will ignore can protect them. It probably was a big concern in the first season (thus they had that longer disclaimer narrated to be sure people would listen!).

Though by now the person suing would have to prove that the 16 years of the show is not relevant as proof that it is "just a show" so perhaps they are not as worried anymore....

Perhaps I should hold a contest to see who can come up with the most source inspirations for my disclaimer, with perhaps a special bonus for anyone who can think of the proper disclaimer text to keep people from misunderstanding the disclaimer? :-)


# zzz on 9 Oct 2005 5:47 AM:

If you are trying to say that the shows success has something to do with the ideas from headlines marketing or so, I do not believe this is the case. This is the first time I hear the show would so directly take their plots from real cases, of course such can be suspected given the disclaimer, but that fact has never been marketed here.

So why is the show still popular? Well just compare it to any remotely similar shows and you'll see it instantly. L&O has very high production values and fine grained & tuned style that really fits with the name. You don't see this in many shows. There's a ton of court shows but I can't think of too many in the same ball park, many of them come out as either too cheesy/dry or when it comes to modern shows, too flashy and over produced trying to spell "modern". Those just do not work after you've seen L&O. Sure marketing may have initially had something to do with it, but given the long run I think people would keep on watching it even without any marketing (as they do here).

# Michael S. Kaplan on 9 Oct 2005 5:51 AM:

I am indeed suggesting that it is one of the reasons, since it has even been one of the marketing campaigns (I certainly did not make up the term 'ripped from the headlines' in relation to the show!).

Now there are obviously other reasons, this is just one of many....

# Ben Bryant on 9 Oct 2005 9:27 AM:

It interesting that you claim "Unicode Encoded" in your disclaimer. Not really the right place although I know you recently reorganized your page. You could add a disclaimer to your disclaimer saying:

"this disclaimer is tongue in cheek, and not to be regarded as a real disclaimer. However, I do wish to disclaim any and all claims that might be construed here"

# Michael S. Kaplan on 9 Oct 2005 10:57 AM:

Hi Ben -- You are correct about the Unicode Encoded thing being a reorg issue. I just moved it to somewhere a bit better....

# Larry Osterman [MSFT] on 10 Oct 2005 12:42 PM:

Btw, speaking of Lisa Steinberg, IIRC, Joel just got out of prison in June (http://www.msnbc.msn.com/id/5310578/)

# Michael S. Kaplan on 10 Oct 2005 1:31 PM:

Well, Larry, you an just rock me to sleep tonight. (Not!)

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