THE TOMBSTONE AND THE 'SPLATTER HORROR' 

 Bradley v Wingnut Films Ltd [1993] 1 NZLR 415

One family's fight to prevent their tombstone being used in a film...

Background facts

In 1992, the defendant – the production company of Oscar-winning filmmaker Peter Jackson – produced the ‘splatter horror’ zombie-comedy film Brain Dead (AKA Dead Alive).  The film was shot at various locations around Wellington, including the Karori Cemetery, at which the plaintiff’s family had since 1911 held an exclusive right of burial in perpetuity at a certain plot.  The plot had a prominent tombstone.

In the film, the tombstone was displayed as a backdrop.  It was never shown in its entirety, appeared only for 14 seconds, and at no time was it possible to read anything on the tombstone. 

Through an article in The Dominion, the plaintiff and his wife learnt of the filming at the cemetery.  The article in the newspaper also drew their attention to the film’s use of their family tombstone.  The article contained a photo of filming taking place, in which the letters “BRA” on the tombstone could be made out. 

During a visit to the plot, a stranger approached the Bradleys and said he had recognised the tombstone “from television”.  He said he assumed the Bradleys had given their permission for the tombstone to be filmed and had received money for this purpose.

At that stage, no member of the plaintiff’s family had seen the film.  The plaintiff sought an interim injunction to prevent any dissemination of the film.  This application was rejected.  The defendants sent off the film to the Cannes Film Festival, where it enjoyed considerable success, and afterwards received a favourable review in Time magazine.

The plaintiff came back to Court seeking a permanent injunction “to restrain the defendant from publishing or disseminating any part of the film Brain Dead or any film material depicting or containing images of the plaintiff’s tombstone, in New Zealand or elsewhere”.

The plaintiff sought this remedy on the basis of several causes of action:

·      Intentional infliction of emotional distress

·      Breach of privacy

·      Defamation

·      Malicious falsehood

·      Negligence

·      Trespass

Evidence

The Bradleys were said to be “shocked and upset” when they saw the film.  Mrs Bradley described it as “disgraceful”.  They were particularly concerned by one scene in which a zombified woman rises out of the grave and attacks a young lout for urinating on the grave.  At the hearing, the parties disputed whether this scene depicted the youth being disembowelled by the corpse or – as the Bradleys contented – having sexual intercourse with it. (Gallen J dutifully recorded the competing arguments, before deciding that he did not need to reach a “definite conclusion” in order to decide the case. The scene is at about 0:45:20 of the film if you are interested in deciding for yourself.) In another scene, the hero of the film was seen to sit on the steps of the plot.

The plaintiff called evidence from a university lecturer from the religious department at Victoria University, who indicated there are many people from varying religious backgrounds who see a cemetery generally and a grave in particular as being a sacred place and who are vulnerable to any action that may be seen as desecrating it.  The lecturer said that even the action of sitting on the steps could be regarded as unacceptable behaviour.  However, the cemetery’s sexton, who was also called by the plaintiff, conceeded in his evidence that, on occasion, he himself had sat on the steps.

Judgment

Gallen J dismissed all the causes of action and declined to issue the injunction.

In respect of the claim for ‘intentional infliction of emotional distress’, the Judge held that the shock and distress the plaintiff suffered as a result of the film (which the Judge accepted on the plaintiff and his wife’s evidence) was sufficient to meet the threshold required for the cause of action.  However, there was no evidence that the harm was foreseeable or that the defendant intentionally directed any action against the plaintiff.  Hence the cause of action failed.

With regard to the breach-of-privacy claim, the Judge did not find a breach of privacy had occurred.  Gallen J agreed with the comments of the Judge who had rejected the plaintiff’s earlier application for interim injunction: that there “could scarcely be anything less private than a tombstone in a public cemetery [and that] [t]he whole purpose of the stone is as a memorial and a publication to all those who choose to read it”.  Further, the Judge rejected that the publicity given to the tombstone in its depiction in the film would be highly offensive to a reasonable person.  Breach of privacy thus failed.

As for defamation, the plaintiff claimed the film “gives rise to innuendoes that the plaintiff consented to the use of the tombstone, approved of the nature of the film and/or received gain or profit from doing so”.  The plaintiff’s claim in this regard seemed to rest largely on the evidence of the stranger who had approached him and his wife in the cemetery.  Although the Judge accepted this occurrence had taken place, the stranger could not be located to give evidence.  The Judge held that the stranger must have been mistaken in saying they had seen it "on television" – that this person must have recognised the tombstone from the newspaper.  Overall, however, the Judge appeared to believe this pleaded meaning was too strained to be substantiated.

The tort of malicious falsehood fell down because there was no evidence of direct malice on the part of the defendant against the plaintiff. The Judge stated:

The tombstone is merely a part of the ambient cemetery.  It is not significantly involved ... at all.  When the actor sits on the steps leading to it, no significance is given to the action by the tombstone or the grave plot.  There is no juxtaposition of the action with the tombstone or grave plot in such a way as to relate or connect the two other than as part of the background.

In respect of the claim for negligence, Gallen J was reluctant to find that a duty of care existed between the film production company and the plaintiff, in view of previous reluctance by the Court of Appeal to merge defamation law and negligence principles (in Bell-Booth v AG [1989] 3 NZLR 148 and Balfour v AG [1992] 1 NZLR 519).  Further, the Judge believed there was insufficient connection between the tombstone or grave plot and the scenes to which the plaintiff took exception, for a duty of care to exist.  Hence the claim for negligence failed.

Finally, the Judge considered the claim for trespass.  The plaintiff relied on the scene in which the actor was shown to sit on the steps leading to the plot.  Further, the plaintiff contended that a statutory right of burial in a reserve plot was to be equated with a property right.  He further relied on the university lecturer’s evidence that the act of sitting on the steps could amount to a desecration in the eyes of many people.  Meanwhile, the defendant argued that although the plaintiff had an exclusive right of burial in perpetuity, this did not amount to exclusive possession – a usual requirement for a claim in negligence.

The Judge leant towards the plaintiff’s view – that exclusive possession did exist – through the example that the family would likely be able to prevent, by injunction, the interment of a stranger within the family plot.  Ultimately, however, the Judge stated his doubt that the actor’s sitting on the steps,

even although seen as unacceptable and perhaps susceptible to prevention by use of the law of trespass, is such as to justify an injunction preventing the screening of the film in which the action is recorded.

And with that, the plaintiff’s final cause of action failed.

Discussion

The defamation claim was of minor significance in this case.  However, it is worth examining the meaning the plaintiff pleaded arose from the film – “that the film gives rise to innuendoes that the plaintiff consented to the use of the tombstone, approved of the nature of the film and/or received gain or profit from doing so”. 

In this instance the plaintiff’s case appeared to confuse itself with the use of the term “innuendoes”.

In defamation law, different rules of evidence apply depending on whether a potentially defamatory meaning is pleaded by the plaintiff as a ‘natural and ordinary meaning’ or an ‘innuendo meaning’. 

If the plaintiff says a potentially defamatory meaning arising from a publication is a natural and ordinary meaning, this is an assertion by the plaintiff that the meaning pleaded is what an ordinary reasonable person would understand by the publication.  Where natural and ordinary meanings are pleaded, evidence of meaning is not permitted – i.e. the plaintiff cannot call evidence from people who read or saw the impugned publication, and have them state that they interpreted the publication in line with the meanings pleaded.  In such cases, the finder of fact (the Judge if sitting alone, or Jury in some cases) must assess whether the pleaded meaning arises fairly from the publication.  The finder of fact in these cases represents the ordinary reasonable reader/viewer/listener of the publication.

By contrast, where a plaintiff says a potentially defamatory meaning arises in the publication by way of innuendo, this means the plaintiff accepts that the potentially defamatory meaning would not have arisen in the eyes of ordinary people reading or viewing the impugned publication, but rather that the potentially defamatory meaning arose in the eyes of certain people: people with knowledge of facts extrinsic to the publication or ‘inside information’.   

Because of this distinction, the word ‘innuendo’ has a special meaning in defamation law, which is discerned from its use in ordinary parlance.  It is important to note that sometimes natural and ordinary meanings arise by way of implication or what are commonly – but not legally – referred to as “innuendoes”.  In these instances, the defamatory meanings will not be stated explicitly in the publication – that is, it will not be stated in the article that Mike is a corrupt police officer.  Rather, the meaning arises inferentially – i.e. the facts stated in an article would lead ordinary reasonable people to the conclusion that Mike is a corrupt police officer.  And, because this inference is something that ordinary reasonable people would infer from the publication  i.e. they do not need any knowledge of extrinsic facts in order to interpret the impugned publication in the manner contended  in defamation law this meaning is classed a ‘natural and ordinary meaning’.  Judges dealing with this distinction have termed such a natural inference as a “false innuendo” – to signify that it is not an innuendo in the legal sense requiring special evidence rules – or a “popular innuendo” – to signify that it is only an innuendo in the popular usage of the term, and not its legal sense.

Where actual ‘innuendo’ meanings are concerned, judges have termed the impugned words as “true innuendo” or “legal innuendo” – to make clear that these are cases where special evidence rules apply.

Whew! Innuendo meanings are tricky, right!?

Well, yes, they are, but what makes the distinction difficult to comprehend is cases like the present, where the word ‘innuendo’ is used indiscriminately – when really the term 'natural implication' or 'natural inference' would have more appropriately described the impugned sting alleged to arise from the film. 

In this case, the plaintiff clearly meant to plead the impugned implication or inference on the basis of natural and ordinary meaning: what would be a ‘false innuendo’.  Again, this does not mean it was alleged the potentially defamatory meaning arose explicitly in the publication, but rather that the defamatory meaning allegedly arose as a natural inference that ordinary reasonable people viewing the film would have understood by it.

This being the case, since the pleaded meaning should have fallen under ‘natural and ordinary meaning’, the plaintiff would strictly have been unable to call any evidence to verify that the meaning to be taken from the film was indeed “that the plaintiff consented to the use of the tombstone, approved of the nature of the film and/or received gain or profit from doing so”. 

As a result, it is actually irrelevant that the stranger who reportedly approached the plaintiff and his wife in the cemetery and indicated that he interpreted the publication in line with the impugned meaning could not be found.  Strictly speaking, this person would not have been permitted to give evidence anyhow, given the natural-and-ordinary-meaning basis of the claim.

Of course, if the plaintiff had intended the claim to rest on a ‘true innuendo’ meaning – i.e. one of those special cases where special evidence rules apply – then one would expect the plaintiff to have called evidence from friends or such who already knew of the connection between the plaintiff and the tombstone – i.e. persons who had knowledge of facts extrinsic to the publication that allowed them to construe the film in the manner the plaintiff contended.  By contrast, a complete stranger would not have enjoyed such knowledge, and would thus represent an ‘ordinary reasonable person’ interpreting the film in its ‘natural and ordinary meaning’.  As a result, it can be concluded that the Judge refused to find the film bore as a natural inference the pleaded meaning, notwithstanding the evidence of the stranger who apparently did interpret the film in this way.

Ultimately, this case will be consigned to history for the plaintiff’s sheer determination to prevent the family plot and tombstone being shown in the film, and the creative causes of action pleaded in the hopes of achieving this.  Further, the case was an early statement in New Zealand jurisprudence on the then-fledgling tort of breach of privacy.  It is likely to be for this reason that the case was recorded in the law reports in the first place.   

In the end, this case is probably best summed up as the managing editor of LexisNexis put it in his own review: “Some things are just not worth suing over – background images in splatter horror films being one example”. 

 

Click here to download the judgment

 

Editor's note: In the Judgment, Gallen J expressed doubt that an ordinary person would be able to identify the tombstone if taken to the cemetery for that purpose.  D-U can confirm the Judge’s suspicions.  After a 45-minute fieldtrip to the cemetery, the tombstone proved impossible for D-U personnel to find, using footage from the film as a guide (albeit over 20 years old).  On that basis, it seems simply implausible that an ordinary person would identify it from the film!