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.
Next blog: THE RIGHT OF PUBLICITY
Self Defense Seminar:
Date: May 21, 2013, New York
This seminar explains how writers and filmmakers can prevent problems
from arising by properly securing underlying rights, and encouraging the other
party to live up to agreements by adding performance milestones, default
penalties, and arbitration clauses. This seminar is an all-day class with Mark
Litwak. Attorneys may earn CLE credit. Excerpts from Mark’s last seminar in New
York on financing films can be viewed at: Link
Volunteer Lawyers for the Arts presents Mark Litwak’s Self Defense Seminar: Seminar info
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
