Scandalously Wrong

          Since Scandal burst on to the scene in 2012, it has had consistently high ratings and sparked considerable debate about whether one should be Team Fitz or Team Jake and whether Olivia wears a white hat or a black hat.  Scandal has continuously been compared to House of Cards—see my previous post on the Netflix hit here—as both detail the tawdry, behind-the-scenes goings on of Washington; and, simultaneously, both shows get things a little wrong.

            One of the show’s largest plot points revolves around B-613, a covert, black-ops agency that does the dirty work of the United States government but is not under the control of the president, or any other government authority.  Instead, it reports only to its commander, who chooses what information he wants to give to the president. 

            B-613 might be based on Majestic 12, a secret group of scientists, military officers, and government officials, allegedly formed by President Truman in 1947 to investigate UFO sightings.  But, besides the fact that Majestic 12’s existence is questionable, if it was real, it was at least formed and overseen by the president.  Scandal takes a big departure from reality by constructing a group that supersedes the powers of all three branches of government. 

            B-613 is most comparable to the real-life CIA, which states on its website that both Congress and the executive break oversees its activities.  Additionally, it notes that “only the president can direct the CIA to undertake a covert action.”  As such, while Scandal is great for love triangle and exciting plot-twist fodder, its legal basis is lacking. 

An Old Stalwart: Law and Order: SVU

           Unlike my previous posts on The Good Wife and House of Cards, both newer shows normally written about for their plot twists and overarching narratives, Law and Order: SVU (along with the original Law and Order and Law and Order: CI) is the go-to show when comparing procedural police/law shows to reality.  Studies have analyzed the 15-season show’s accuracy of its portrayal of the legal system and articles have detailed how closely SVU has mirrored its ripped-from-the-headlines stories.

            This week’s episode entitled “Criminal Stories” featured a Muslim woman, Heba, who claimed that she was raped in Central Park as a hate crime; after a journalist, played by Alec Baldwin, exposes that Heba was not in Central Park at the time of her alleged rape, it is discovered that the victim was really raped in the office of her brother’s boss.  The case goes to trial and when the reporter realizes his error and writes a retraction, the judge declares a mistrial because multiple jurors admit to reading the story.

            This case was based loosely on that of Tawana Brawley, which was directly mentioned in the episode, although Brawley fabricated her claims, while Heba was actually raped in the show.  The episode highlighted an issue with prosecuting rape cases, because as Detective Benson pointed out, victims of sexual assault omit details of their crime 50% of the time when first telling police, due to embarrassment and/or fear.  As such, the district attorney has a huge hurdle to overcome in terms of the victim’s credibility.  In this case in particular, Heba deliberately faked a crime scene by rubbing mud on herself as if she was actually in the park.  Although other evidence was found to corroborate the real story—an unrealistic, overwhelming amount—it seems unlikely that this would be a winnable case in real life.  (In the show, a plea bargain is reached.)  Additionally, despite the lovely irony of Alec Baldwin as a reporter, a sole journalist would probably not have as much impact in a real case as he did in this one.

House of Cards Complicates

          With the second season of House of Cards released, binge-watchers—including me—have delved back into the scheming, frenetic, and sometimes violent inner workings of the fictional federal government.   One big question that House of Cards quickly raises is: Are Vice President Frank Underwood’s manipulative tactics and all that follows reflective of how the government and legal system really work?

            The answer, in short, is no.  (BEWARE, spoilers are ahead.)  One of the main plotlines in season two involves wealthy American businessman Raymond Tusk funneling Chinese money through an American-based casino to influence U.S. elections.  The money goes toward PAC-funded ad campaigns that attack the Democratic administration’s candidates in the upcoming mid-term elections.

            In reality, campaign finance laws make Tusk’s job much easier.  Tusk should not have used a super PAC for the ad campaigns, but a 501(c)4 nonprofit, instead.  501(c)4s do not have to disclose their donors or anything about their spending until a year after the election on which it spent.  Tusk could have easily avoided snooping reporters and enemy Vice President Underwood’s investigations that way.  Additionally, with a nonprofit, Tusk would not have needed to create a web of Chinese donors to hide his influence; current laws would allow him to donate anonymously with no repercussions.

            Tusk also had another, less complicated option at his disposal, in the form of a shell corporation.  The 2010 Citizens United v. FEC decision legalized corporate donations in politics via super PACs and/or nonprofits.  Instead of having Chinese visitors “throw away millions,” at the cooperating casino, as the show explains, the money could have gone directly toward its intended purpose.  The House of Cards method left a trail of plane tickets, casino video footage, and airport/limo company/casino employees who might be willing to talk as evidence of Tusks actions.

            While House of Cards obviously complicates things for the sake of its action-packed twists, it could be more true-to-life.  It goes against one of Frank’s iconic quotes that, “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.”  But, because of House of Cards’ methods, anti-hero Frank is able to come out on top, and keep viewers coming back for more.

How Good is The Good Wife?

           Season 5, Episode 11 episode of the popular CBS legal drama The Good Wife entitled “Goliath and David,” concerns a copyright battle over a parodied song.  The legal issue was a ripped-from-the-headlines story based on the hit show Glee ripping off a cover of the song "Baby Got Back" by singer-songwriter John Coulton.

In “Goliath and David,” a quirky folk duo created a cover of a popular rap artist’s song that is then used on a television show.  The duo decides to sue the television studio, which opts to countersue because it claims that it received permission from the original rap artist to use his song, while the duo failed to get such permission.  The judge ruled that while the television show did steal the duo’s song, they were not entitled to damages because while they obtained a compulsory license for the original rap song, they did not get the appropriate derivative rights to use the lyrics.

Under U.S. copyright law, a publisher must get a compulsory license to record a song that has already been recorded and released commercially.  Additionally, a publisher must acquire a derivative work right to develop a new work that is based on an original work protected under copyright law.  A parody falls into this category.

In the real life version of this story, Glee used an arrangement of “Baby Got Back” made by Jonathan Coultron in 2005.  Coultron claimed the show never contacted him and tweeted his dissatisfaction.  The show eventually responded, saying that it was within their legal rights to use Coultron’s cover, such usage was its typical protocol for covers, and he should be happy for the publicity. 

In The Good Wife, the situation is neatly resolved in favor of the folk duo by a music analysis showing the television studio using part of the duo’s actual recording.  Coultron is looking for similar evidence of his original recording being played on Glee; without that, there is unlikely any winnable legal action that he can take.

*Photo is taken from cbs.com