INDUSTRY INSIGHTS: Trouble From People Portrayed In Your Work

By Mark Litwak, Attorney At Law

As an entertainment attorney, I am often called upon to assist writers who have gotten themselves into trouble because they do not understand how their work may infringe the rights of others. A writer who learns the fine points of the law through trial and error is receiving an expensive education. Here is a brief explanation of how to protect yourself. 

I. FICTIONAL CHARACTERS

If your script or film contains fictional characters -- characters from your imagination -- you generally do not need to obtain any permissions or releases. However, if there is a chance that the public could mistake your imaginary characters for real people, you could be liable if you have thereby infringed their rights.

You can protect yourself by making sure your fictional characters cannot be mistaken for real people. Give characters unusual names that no living individual would have. Check the phone book to see if any people with your character's name reside at the location portrayed in your story. If there is a person in that community with the same name or a similar one, consider changing the locale or setting the story in a fictional locale. Add a disclaimer at the beginning of the film stating that any resemblance to persons living or dead is purely coincidental.

If fictional characters are drawn from another's literary work, you might be infringing that author's copyright unless the work has gone into the public domain, or your use is considered a fair use. You may borrow personality traits, so long as you do not infringe another's copyright. The first author to create a hard-boiled private eye, for example, cannot prevent other authors from creating their own hard-boiled private eyes.

Characters that have a visual component, such as comic book characters, are more likely to be protected under copyright law. Moreover, if you borrow the name of someone else's character you may be infringing trademark rights they have in the character, and engaging in unfair competition.

As explained later, in some circumstances you may have the right to portray real-life individuals without their permission, especially if those persons are public figures or public officials.

II. FICTIONAL CHARACTERS BASED ON REAL INDIVIDUALS

A writer's imagination necessarily draws upon one's life experiences and people the writer has met. A writer can freely borrow ideas, historical facts, personality traits of characters, and themes from other copyrighted work without liability. These items are not copyrightable.

If a fictional character is loosely based on a real-life individual, and the public cannot identify the real-life individual from the context in which the fictional character is portrayed, there is little risk of liability. On the other hand, suppose you wrote a novel about the widow of a former American president assassinated in Dallas, and the widow character later marries a Greek shipping tycoon. Although, you have labeled the book a "novel," said that it is a work of fiction, and given the characters fictitious names, readers may nevertheless believe you are writing about Jackie Kennedy. If you defame her, or otherwise invade her rights, she may have a good cause of action against you. You can be liable for defaming an individual even if you do not name her.

An interesting case is Leopold v. Levin. The plaintiff, Nathan Leopold, pled guilty in 1924 to kidnapping and murdering a young boy. Because of the sensational nature of the crime, the case attracted international notoriety, which did not wane over time.

In 1956, Levin, the defendant, wrote a novel entitled Compulsion. The framework for the novel was the Leopold case, although Leopold's name did not appear in it. The book was described as a fictionalized account of the Leopold murder case. A motion picture based on the book was released with fictitious characters who resembled the actual persons from the case. The promotional materials referred to the crime but made it clear that the story was a work of fiction suggested by real-life events. Leopold sued for invasion of privacy. After the novel was published, but before the movie was released, Leopold published his own autobiography.

The court was faced with the issue of whether Leopold, who had fostered continued public attention after having engaged in an activity placing him in the public eye, had a right of privacy in a fictitious account of that activity, or in the use of his name in promoting such an account. The court found against Leopold, stating that books, magazines, and motion pictures are forms of public expression protected by the First Amendment. The court noted that while the book and movie were "suggested" by Leopold's crime, they were evidently fictional works. The novel and film depicted portions of Leopold's life that he had caused to be placed in public view. The court did not consider the fictionalized aspects highly offensive, which is the standard for determining invasion of privacy.

The court noted that a documentary account of the Leopold case would be constitutionally protected. Also, an entirely fictional work inspired by the case would be protected if matters such as locale were changed and the plaintiff was not identified.

III. PORTRAYING IDENTIFIABLE PERSONS

A person's right to privacy has to be balanced against other people's rights under the First Amendment. If Kitty Kelly wants to write an unauthorized biography about Frank Sinatra, she can do so without his permission. Likewise, Mike Wallace and his "60 Minutes" camera crew can film others without their permission. However, journalists' rights are not absolute. If Mike Wallace placed a hidden camera in a department store dressing room, he would be liable for damages for invading the privacy of customers.

Determining whether a filmmaker has infringed upon the rights of a subject who has not consented to be portrayed can be a complex matter. The status of the subject -- whether he is a public figure or public official, and whether he is alive or deceased -- may be important. Whether the activities portrayed are newsworthy may also be decisive. And, the manner in which a person's likeness is used -- whether in a film or on a coffee cup -- is relevant as well.
The most likely grounds upon which to sue for an unauthorized portrayal are defamation, invasion of privacy, right of publicity, and unfair competition. Let us consider each in turn.

A. DEFAMATION

Defamation is a communication that harms the reputation of another so as to lower him in the opinion of the community or to deter third persons from associating or dealing with him. For example, those communications that expose another to hatred, ridicule, or contempt, or reflect unfavorably upon one's personal morality or integrity are defamatory. One who is defamed may suffer embarrassment and humiliation, as well as economic damages, such as the loss of a job or the ability to earn a living.

The law of defamation can be very confusing because the common law rules that have developed over the centuries are subject to constitutional limitations. To determine the current law, one must read a state's defamation laws in light of various constitutional principles. For example, recent United States Supreme Court decisions have imposed significant limitations on the ability of public officials and public figures to win defamation actions. If a state's law is inconsistent with a constitutional principle, the law is invalid.

There are a number of defenses and privileges in defamation law. Therefore, in some circumstances a person can publish an otherwise defamatory remark with impunity. Why? Protecting a person’s reputation is not the only value we cherish in a democratic society. When the right to protect a reputation conflicts with a more important right, the defamed person may be denied a recovery for the harm suffered.

The most important privilege, from a filmmaker's point of view, is truth. If your remarks hurt someone's reputation, but your remarks are true, you are absolutely privileged. An absolute privilege cannot be lost through bad faith or abuse. So, even if you maliciously defame another person, you will be privileged if the statement is true. Truth is an absolute privilege because our society values truth more than a person's reputation.

Keep in mind that while truth is an absolute defense, the burden of proving the truth may sometimes fall on you. Thus, if you make a defamatory statement, you should be prepared to prove that it is true -- which may not be an easy task.

Another privilege is the conditional common law privilege of fair comment and criticism. This privilege applies to communications about a newsworthy person or event. Conditional privileges may be lost through bad faith or abuse. However, this privilege has been largely superseded by a constitutional privilege applied in the context of statements about public officials or public figures.

Public figures, such as celebrities, or public officials, such as senators, have a much higher burden in order to prevail in a defamation action. They must prove that the defendant acted with "actual malice." Actual malice is a term of art meaning that the defendant intentionally defamed another or acted with reckless disregard for the truth.

Plaintiffs often find it difficult to prove that a defendant acted with actual malice. That is why few celebrities sue the National Enquirer. To successfully defend itself, the magazine need only show that it acted without actual malice. In other words, the newspaper can come into court and concede that its report was false, defamatory, and the result of sloppy and careless research. But, unless the celebrity can prove that the National Enquirer acted with actual malice, the court must dismiss the case. Mere negligence is not enough to create liability when the subject is a public figure or a public official.

B. INVASION OF PRIVACY

The right of privacy has been defined as the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity. In other words, it is the right to be left alone.
Similar to defamation, the right of privacy is subject to constitutional restrictions. The news media, for example, is not liable for newsworthy statements that portray another in a false light unless the statements are made with actual malice. Unlike defamation, a cause of action for invasion of privacy does not require an injury to one's reputation.

Many defenses to defamation also apply to invasion of privacy. Truth, however, is not a defense. Likewise, revealing matters of public record cannot be the basis for an invasion of privacy action. Express and implied consent are valid defenses. If you voluntarily reveal private facts to others you cannot recover for invasion of your privacy.

Privacy actions typically fall into four factual patterns: 

1. Intrusion into One's Private Affairs

This category includes such activities as wiretapping and unreasonable surveillance. The intrusion must be highly offensive. Whether an intrusion is highly offensive depends on the circumstances. Most people would find it offensive to discover a voyeur peering through their bedroom window. On the other hand, a salesman knocking on your front door at dinner time may be obnoxious but his actions would not constitute an invasion of privacy.

2. Public Disclosure of Embarrassing Private Facts

One who gives publicity to a matter concerning the private life of another is subject to liability for invasion of privacy if the matter publicized is highly offensive to a reasonable person, and if the matter is not of legitimate concern to the public, i.e., if the information is not newsworthy.

This type of invasion of privacy occurs, for example, where someone digs up some dirt on another person and publicizes it, but the information is not of legitimate interest to the public.

3. Appropriation

An action for appropriation of another's name or likeness is similar to an action for invasion of one's right of publicity. An invasion of privacy action seeks to compensate the plaintiff for the emotional distress, embarrassment, and hurt feelings that may arise from the use of his or her name or likeness. A right of publicity action, on the other hand, seeks to compensate the plaintiff for the commercial value of exploiting his or her name or likeness.

As with the right of publicity, a person cannot always control another’s use of his name or likeness. While you can prevent someone from putting your face on a pancake mix box, you cannot stop Time magazine from putting your face on its cover if you have been involved in something newsworthy.

4. False Light

Publicity that places a plaintiff in a false light will be actionable if the portrayal is highly offensive. This type of invasion of privacy is similar to defamation, but harm to a reputation is not required. For example, false light invasion of privacy could entail a political dirty trick such as placing the name of a prominent Republican on a list of Democratic contributors. Although, this person's reputation may not be harmed, he has been shown in a false light.

An interesting false light case is Spahn v. Julian Messner, Inc. Here, Warren Spahn, a well-known baseball player, sued over the publication of an unauthorized biography, alleging that his rights under New York's misappropriation (privacy) statute had been invaded. In the purported biography, the author took great literary license, dramatizing incidents, inventing conversations, manipulating chronologies, attributing thoughts and feelings to Spahn, and fictionalizing events. The invented material depicted the plaintiff's childhood, his relationship with his father, the courtship of his wife and important events in their marriage, and his military experience.

The defendant argued that the literary techniques he used were customary for books aimed at young people. The defendant never interviewed Spahn, any members of his family, or any baseball player who knew him. The author's research was comprised of newspaper and magazine clippings, the veracity of which he rarely confirmed.

The court concluded that the defendant invaded Spahn's privacy. The New York privacy statute protects a public person from fictionalized publication if the work was published with actual malice. Since the defendant writer invented large portions of the book, he obviously knew his statements were untrue. While Spahn could not prevent publication of an unflattering biography simply because he did not like its contents, this fictitious report masquerading as fact was not protected.

About Mark Litwak: Mark Litwak is a veteran entertainment attorney and Producer’s Rep based in Beverly Hills, California. He is the author of six books including: Reel Power: The Struggle for Influence and Success in the New Hollywood; Dealmaking in the Film and Television Industry; Contracts for the Film and Television Industry; and Risky Business: Financing and Distributing Independent Film. He is an Adjunct Professor at the USC School of Law and the creator of Entertainment Law Resources website. www.marklitwak.com