And while the story of the fictional “Caleb Bryant” -- note the initials -- and “Misha” certainly has remarkable similarities to the tumultuous real-life relationship between Rihanna and Brown – including a serious assault, a leaked police photo, a controversial tattoo and a questionable reconciliation – “Law and Order: SVU” took it much further: The episode ends with Bryant presumably taking Misha’s life, after she refused to implicate him in a nightclub shooting that killed her mentor.
“Law and Order” often traffics in “ripped-from-the-headline” stories, and the resemblances between the characters and circumstances of an episode and the real-life people and events that inspired it can vary significantly. The popular series franchise (the original “Law and Order” was canceled in 2010, but “Special Victims Unit,” also set in New York, remains) has aired episodes inspired by the Bill O'Reilly sexual harassment case, the assassination of Malcolm X, and the Eliot Spitzer prostitution scandal. In 2008, “Law and Order” aired an episode inspired by the double suicides of New York artists Theresa Duncan and Jeremy Blake – but instead turned it into a murder, perpetrated by the male partner.
Once again, the “Law & Order” franchise has invented a homicide, though in this case, it appears to be something of a cautionary tale. The “Law & Order” writers are certainly not the only people who are uncomfortable with a Rihanna-Brown reunion, and many a story was been written (including one here) about how Rihanna’s decision to take back her abuser may indirectly jeopardize the well-being of young women who see her as a role model. But if the writers truly see Chris Brown, aka Caleb, as someone who could be driven to murder by a question about a text message, how might such a man react to a thinly veiled representation that draws him as an unrepentant villain?
At the very least, Brown could not be blamed for considering legal action against “Law & Order: SVU” for depicting him as a murderer. But the law probably would not be on his side. Maryland publishing attorney Daniel Steven said that in order to succeed with a defamation case, the plaintiff must be able to demonstrate that he or she could be reasonably identified as the character – which would seem easy enough for Brown or Rihanna to do. But the fact that they are both indisputably public figures would make it very difficult to proceed with a defamation case. “There is a different standard for public figures vs. individuals,” Steven said. “The public figures have less rights,” he continued, explaining that this is an extension of First Amendment freedoms allowing journalists to publicly criticize high-profile individuals.
In order for a public figure to successfully claim defamation, the prosecution must be able to meet the “actual malice standard” established in the landmark 1964 Supreme Court case, The New York Times Co. vs. Sullivan. In other words, the plaintiff must be able to prove that the accused acted in reckless disregard for the truth, which requires that he or she demonstrate a malicious intent on the part of the defendant – no easy task. (In the 1964 case, the Supreme Court ruled 9-0 in favor of the Times.)
“It is very tough to demonstrate actual malice,” Steven said.
Another lawyer felt that the episode’s embellishments are precisely what might protect it from liability.
Though a recap of Wednesday’s “Law and Order: SVU” episode on TMZ charges that it “copied the Rihanna-Chris saga almost exactly” – that’s not exactly correct. While there were some very clear similarities, key events like the nightclub shooting and the woman’s death are -- obviously – fictionalizations, and therefore represent plausible deniability should anyone question the episode’s disclaimer that “The following story is fictional and does not depict any actual person or event.”
“If you throw in some fictional elements into a story" you are protected, said Andrew Berger, a New York attorney who specializes in intellectual property and trademark law.
“That is exactly what people do in these situations. … They change the story so it doesn’t look like a slavish copy of the truth.” As in the case of parody, Berger – who had not seen the "Law and Order" episode and was only briefed on the details – felt that the production team would be protected under Fair Use, as the episode was inspired by real people and events, but the circumstances were changed somewhat.
“Just because they have taken a kernel or two of someone else’s story I wouldn’t be too confident that that will be a problem for the network,” Berger said, adding that if someone in Brown or Rihanna’s position did pursue legal action, “I wouldn’t take the case.”
And as of now, there is no hint there will ever be a case: Neither Rihanna or Chris Brown has commented on the episode, either on their oft-updated Twitter feeds or through their publicists. Representatives from NBC Universal declined to comment on the episode either.