Protecting Against Defamation Claims From Docudrama Productions

Liability may arise under defamation for knowingly or recklessly including falsehoods in a work about a living person. Moreover, there is substantial support for a claim of false light invasion of privacy under the same basic criteria. A work that includes the use of the name or likeness of a celebrity or private individual in fictitious events that are patently false or discrediting seems tailor-made for suits based on either of these theories. However, there is a debate about the use of personal identity in a fictional work and whether it is actionable as an infringement of the rights of privacy or publicity.

While the First Amendment supports the right to portray people and events with great latitude, it is not exhaustive. The majority view is that a fictionalized work is protected by the First Amendment as entertaining or informative free speech. But this does not cover all situations. When a fictionalized work contains misrepresentations of fact which, when viewed reasonably, can be read to identify a real and living person, a claim for defamation or false light invasion of privacy may be made.

This particular area of law is unclear because courts have often combined the legal theories of defamation, false light invasion of privacy and right of publicity. Studios often argue that without some elaboration biopics or docudramas would not be marketable to the general movie-watching public. As such, problems arise when an unauthorized biography contains fictional episodes or dialogue that has been intentionally included in the program to create greater drama or to raise the entertainment quotient, or when the name or likeness of a real and identifiable person is used in a program that contains events or circumstances with no real connection to the reality of his or her life.

'Of or Concerning' Real Person

Under both the theories of defamation and false light invasion of privacy a major issue is whether the fictionalized character will be understood by the public to be 'of and concerning' an actual identifiable person. In other words, if the fictional character is readily identifiable as a real person. In some instances this requirement is very clear, such as when the real person's actual name is used and/or when a look-alike portrays the individual. In other instances, however, proving that the public will understand the character to be based on an actual person is a more difficult hurdle for a plaintiff to overcome. While it may be a more challenging case to make, it is by no means impossible. Thus, it is inherently dangerous for a producer to try to capitalize on the notoriety of an individual in any manner that may also vilify the person. If the public can reasonably identify the actual person being portrayed, then a violation may exist.

True Crime

Films based on scandals or crimes have long been in vogue as potentially successful production opportunities but can also subject a producer to litigation. Obtaining a subject's rights to the portrayal will often avoid any issues or claims. However, this may be easier said than done depending on the particular subject individual. If ' per the 'Son of Sam' statutes in effect in many states ' a criminal ultimately won't receive direct payment for the rights to his or her story, there is very little incentive to agree to a transfer of rights or to assist in the production of the film or TV program. Moreover, if a producer pays monies to a criminal for the rights to his or her story and it is later determined that the transaction runs afoul of the particular state's limitations, the producer may be responsible for paying an equal amount to the victims if the money has been spent or otherwise is not returned by the criminal.

Use of Disclaimers

It is uncertain to what extent the use of a disclaimer such as 'This film is a work of fiction and any resemblance to real persons or events is purely coincidental,' will protect against a possible claim. If a person, acting reasonably, believes that the work is based on actual events and is not a fictionalized account, then a claim may be made regardless of the disclaimer.

However, the use of a disclaimer is a factor that may be considered in determining whether the work did represent itself as fact or fiction. A fictitious work that utilizes the actual name or attributes of a real person will most likely be protected as free speech as long as it is clearly presented as fiction. For example, in deciding whether a 'docudrama' about the history of the Black Panther Party violated the rights of its former leader, Bobby Seale, a court dismissed the claims noting that the film did not purport to be a work of fact or strict historical account, but instead was a work of entertainment. Seale v. Gramercy Pictures, 949 F. Supp. 331 (E.D. Pa. 1996), later proceedings at 946 F. Supp. 918 (E.D. Pa. 1997), aff'd without op. 156 F.3d 1225 (3rd Cir. 1998).

Therefore, it is very important to consider how a film is being produced and marketed. In order to provide the strongest protection against a claim that a fictionalized account was portrayed as factual, producers should go beyond boilerplate disclaimer language and craft a disclaimer containing statements specific to the actual individuals or events portrayed that indisputably demonstrate the work is intended for entertainment purposes only.

Steps to Avoid Litigation

A defense to defamation has always been that what was said, or in this case portrayed on the screen, is indeed true. Therefore, relying on facts that are well-documented and indisputable will provide an arguable defense for any claim of defamation. In addition, rights granted by the individual for an authorized depiction of the individual or events will provide protection against privacy or publicity claims. Moreover, the individual's cooperation as a contributor or consultant in the production may be invaluable to the proper telling of the story.

When it is impossible to obtain the necessary permission of an individual, a producer should ask whether it is necessary to include the character in the film at all. If the character must remain in the film, then the individual's identity should be sufficiently changed to render it unrecognizable from the actual person upon whom it was based. This may be done by, among other things, changing the character's name, characteristics, sex or by inventing a character that is an amalgam of several individuals, but not sufficiently similar to anyone in particular.

In deciding whether to produce a biopic, a docudrama or any other reality-based film or program, it is important to consider whether any individual's rights are being violated. Moreover, flexibility is a desirable trait because it may become necessary to completely change the portrayal of certain characters if the necessary rights cannot reasonably be obtained. While the artistic freedom of a producer or writer to tell his or her own interpretation of the story should and can be fostered, it must be realistically balanced against the potential claims that may result.

Sean F. Kane is an attorney with New York's Hall Dickler Kent Goldstein & Wood LLP.

Producers are rushing to meet the public's demand for reality content. This content includes film and TV productions based on the lives of real people. But there are pitfalls in producing 'biopics' or 'docudramas.' By their very nature, concocted scenes and contrived dialogue inherent in these types of productions may give rise to liability. In fact, there have been a growing number of civil actions or claims made concerning the manner in which certain parties have been portrayed.

Various claims have been made by a wide array of parties, including the individuals who actually were or claim to have been the subject portrayed in the film, the heirs of those depicted in the film and, in one case, a town where a depicted deceased individual once resided. Given the range of potential claimants, there is a growing need for actors, writers, producers and studios to consider whether their work is defamatory in nature or otherwise infringes on the rights of any individuals.

The three basic categories of claims that are made in the context of the circumstances surrounding the production of a film or TV program involving real events or individuals are for defamation, invasion of rights of privacy and violation of right of publicity. Defamation consists of a claim involving a false and unprivileged publication that exposes a person to hatred, contempt, ridicule, or causes him or her to be shunned or avoided, or which has the tendency to injure him or her professionally. Invasion of the right of privacy comprises rights an individual has to generally be left alone and out of the public eye. A violation of the right of publicity seeks to protect an individual's right to exploit his or her own name or likeness for commercial purposes.

Liability may arise under defamation for knowingly or recklessly including falsehoods in a work about a living person. Moreover, there is substantial support for a claim of false light invasion of privacy under the same basic criteria. A work that includes the use of the name or likeness of a celebrity or private individual in fictitious events that are patently false or discrediting seems tailor-made for suits based on either of these theories. However, there is a debate about the use of personal identity in a fictional work and whether it is actionable as an infringement of the rights of privacy or publicity.

While the First Amendment supports the right to portray people and events with great latitude, it is not exhaustive. The majority view is that a fictionalized work is protected by the First Amendment as entertaining or informative free speech. But this does not cover all situations. When a fictionalized work contains misrepresentations of fact which, when viewed reasonably, can be read to identify a real and living person, a claim for defamation or false light invasion of privacy may be made.

This particular area of law is unclear because courts have often combined the legal theories of defamation, false light invasion of privacy and right of publicity. Studios often argue that without some elaboration biopics or docudramas would not be marketable to the general movie-watching public. As such, problems arise when an unauthorized biography contains fictional episodes or dialogue that has been intentionally included in the program to create greater drama or to raise the entertainment quotient, or when the name or likeness of a real and identifiable person is used in a program that contains events or circumstances with no real connection to the reality of his or her life.

'Of or Concerning' Real Person

Under both the theories of defamation and false light invasion of privacy a major issue is whether the fictionalized character will be understood by the public to be 'of and concerning' an actual identifiable person. In other words, if the fictional character is readily identifiable as a real person. In some instances this requirement is very clear, such as when the real person's actual name is used and/or when a look-alike portrays the individual. In other instances, however, proving that the public will understand the character to be based on an actual person is a more difficult hurdle for a plaintiff to overcome. While it may be a more challenging case to make, it is by no means impossible. Thus, it is inherently dangerous for a producer to try to capitalize on the notoriety of an individual in any manner that may also vilify the person. If the public can reasonably identify the actual person being portrayed, then a violation may exist.

True Crime

Films based on scandals or crimes have long been in vogue as potentially successful production opportunities but can also subject a producer to litigation. Obtaining a subject's rights to the portrayal will often avoid any issues or claims. However, this may be easier said than done depending on the particular subject individual. If ' per the 'Son of Sam' statutes in effect in many states ' a criminal ultimately won't receive direct payment for the rights to his or her story, there is very little incentive to agree to a transfer of rights or to assist in the production of the film or TV program. Moreover, if a producer pays monies to a criminal for the rights to his or her story and it is later determined that the transaction runs afoul of the particular state's limitations, the producer may be responsible for paying an equal amount to the victims if the money has been spent or otherwise is not returned by the criminal.

Use of Disclaimers

It is uncertain to what extent the use of a disclaimer such as 'This film is a work of fiction and any resemblance to real persons or events is purely coincidental,' will protect against a possible claim. If a person, acting reasonably, believes that the work is based on actual events and is not a fictionalized account, then a claim may be made regardless of the disclaimer.

However, the use of a disclaimer is a factor that may be considered in determining whether the work did represent itself as fact or fiction. A fictitious work that utilizes the actual name or attributes of a real person will most likely be protected as free speech as long as it is clearly presented as fiction. For example, in deciding whether a 'docudrama' about the history of the Black Panther Party violated the rights of its former leader, Bobby Seale, a court dismissed the claims noting that the film did not purport to be a work of fact or strict historical account, but instead was a work of entertainment. Seale v. Gramercy Pictures , 949 F. Supp. 331 (E.D. Pa. 1996), later proceedings at 946 F. Supp. 918 (E.D. Pa. 1997), aff'd without op. 156 F.3d 1225 (3rd Cir. 1998).

Therefore, it is very important to consider how a film is being produced and marketed. In order to provide the strongest protection against a claim that a fictionalized account was portrayed as factual, producers should go beyond boilerplate disclaimer language and craft a disclaimer containing statements specific to the actual individuals or events portrayed that indisputably demonstrate the work is intended for entertainment purposes only.

Steps to Avoid Litigation

A defense to defamation has always been that what was said, or in this case portrayed on the screen, is indeed true. Therefore, relying on facts that are well-documented and indisputable will provide an arguable defense for any claim of defamation. In addition, rights granted by the individual for an authorized depiction of the individual or events will provide protection against privacy or publicity claims. Moreover, the individual's cooperation as a contributor or consultant in the production may be invaluable to the proper telling of the story.

When it is impossible to obtain the necessary permission of an individual, a producer should ask whether it is necessary to include the character in the film at all. If the character must remain in the film, then the individual's identity should be sufficiently changed to render it unrecognizable from the actual person upon whom it was based. This may be done by, among other things, changing the character's name, characteristics, sex or by inventing a character that is an amalgam of several individuals, but not sufficiently similar to anyone in particular.

In deciding whether to produce a biopic, a docudrama or any other reality-based film or program, it is important to consider whether any individual's rights are being violated. Moreover, flexibility is a desirable trait because it may become necessary to completely change the portrayal of certain characters if the necessary rights cannot reasonably be obtained. While the artistic freedom of a producer or writer to tell his or her own interpretation of the story should and can be fostered, it must be realistically balanced against the potential claims that may result.

Sean F. Kane is an attorney with New York's Hall Dickler Kent Goldstein & Wood LLP.