Fictionalization: How Not To Get Sued
David Albert Pierce, Esq. explores how to use factual events in your screenwriting, and offers advice on best practice for fictionalization.
Adapting a true story for film can be tricky.
On the one hand, reality can be extremely powerful—fact is often stranger—and even more entertaining—than fiction.
On the other hand, moviemakers may open themselves up to legal threats raised by the real-life subjects of a true story.
Most documentaries show some slant in the way they present a story to further their theses. Likewise, fictionalization of true events in a narrative film can result in the altering of facts. Both mediums can therefore subject their creators to claims of defamation, right of publicity, and right of privacy claims—exactly what a moviemaker doesn’t need after the arduous process of finally getting to the finish line.
Potential Legal Threats
Facts and historical events cannot be copyrighted, so when a moviemaker is creating a film based on true events and real people, he or she is not typically exposed to liability for potential copyright claims that may be brought by the subjects of the true story. However, the subjects of the true story may well raise one or more of the claims mentioned above.
Fortunately, the First Amendment can provide a substantial but not all-encompassing shield for moviemakers. Defamation involves the intentional publication of a statement of fact that is false, unprivileged, and has the natural tendency to injure. Defamation claims commonly happen if someone feels that a film portrayed him or her in an unflattering way. For example, several Drug Enforcement Administration agents brought a defamation suit against NBC Universal because of the way they were depicted in American Gangster, inspired by a true story.
Right of publicity claims are based in state common law and statutory law, and have to do with a person’s right to control the use of his or her name, voice, photograph, or likeness for commercial purposes. On the opposite side of the coin, right of privacy claims deal with the right of a person to refrain from being thrust in the spotlight, whether through misappropriation of their name or likeness, intrusion on solitude or seclusion, false light, or disclosure of embarrassing private facts.
Whatever the claim, the fact remains that 30 years ago, if someone felt a character in a film was a loose portrayal of themselves, they would call all of their friends and tell them about the cool coincidence. Today, that same person is more likely to call an attorney.
Releases and Life Rights
Obtaining releases and life rights significantly limits a moviemaker’s likelihood of having a lawsuit filed against him or her, as the real-life subjects are ostensibly “on board” with the project. It also discourages others who are considering projects on the same subject from moving forward (“Back off – I’m doing the official story”). And when it comes time to distribute, having releases and life rights makes it easier to obtain Errors & Omissions insurance.
There are still drawbacks. Real-life subjects may demand not just payment for releases and life rights, but approval rights and other controls. Also, obtaining a release from one party may open a Pandora’s box of others standing in line with their hands out, claiming their releases are necessary. So obtaining releases and life rights may not always be feasible.
Best Practices for Limiting Liability
When adapting a true story, a rule of thumb is to obtain releases and life rights of the subjects involved. Or, if releases cannot be obtained in a practical manner, take steps to limit liability for foreseeable claims. Neither the First Amendment nor signed releases will always shield you from a determined person filing a lawsuit. All too often claims are brought regardless of whether the lawsuits have any actual merit.
So utilize legal counsel experienced in clearance, and involve those lawyers as early as possible. Assessing liability for these claims is highly fact-specific and jurisdiction-specific. For example, the court that considered The Perfect Storm’s depiction of a real-life commercial fishing vessel crew found the First Amendment a worthy defense against those unhappy with the portrayal of their deceased loved ones. But the Texas court in a case involving Owen Wilson’s depiction of a foul-mouthed, “shoot from the hip” soldier in Behind Enemy Lines did result in liability when the actual soldier argued that his reputation was damaged.
Best Practice Guidelines
While nothing will entirely eliminate liabilities when adapting a true story to film, here are five “best practice” guidelines to limit them and help put insurance issuers at ease:
- Fictionalize as Much as Possible: Names of characters should be different from those of the real-life people who they are based on (especially if they are depicted unflatteringly). Locations of events and character histories should be changed as much as possible without affecting the story.
- Pre-Production Review for Actionable Script Content: Prior to production, the screenplay should be read for the purposes of identifying and eliminating material that is defamatory, violates rights of privacy and publicity, or is otherwise potentially actionable. If these issues are key to the storyline or entertainment value, strive to differentiate characters from actual individuals.
- Obtain a Clearance Report: A clearance report of the final shooting script should be obtained from a professional clearance research company. These companies perform a variety of tasks, such as researching all story character names and places against the commonality of such names in the general population. Clearance counsel then determines what issues are of substantive concern, helping producers avoid invasion of privacy and similar claims from people the film may have unwittingly portrayed. The report also identifies the proper contact from which to obtain product placement clearances for any products, copyrights, or trademarks referenced in the screenplay.
- Require the Writer to Provide an “Annotation Guide”: This guide identifies every character, place, and event and states whether they are purely fictional, real, or a composite of real and fictitious items. This is then signed under oath by the writer, so if they intentionally wrote the screenplay with a secret vendetta, they’ll be held responsible for indemnifying the production. The annotation guide should also set forth whether the screenwriter’s sources are independent and primary sources (newspaper reports, court transcripts, public records, etc.) or secondary sources (another author’s copyrighted work, autobiographies, copyrighted magazine articles, etc.). Secondary sources may require their own set of releases.
- Obtain Releases from Living and Deceased Individuals Depicted: No names, faces, or likenesses of any recognizable living persons, deceased persons or locations should be used in a film unless written releases have been obtained. The term “living persons” includes thinly disguised versions of living individuals who are readily identifiable. Releases from all recognizable or identifiable deceased persons in the screenplay should be obtained from the personal representative or heirs of such persons. Otherwise, make sure the character traits and physical descriptions are very different from the people that spawned them!
Case law is filled with seeming contradictions. While one set of facts may pass muster with an insurer or distributor, apparently similar facts may not. It is impossible to entirely eliminate all potential legal threats, but definite patterns and indicators of potential risks can be spotted. Legal counsel that understands your creative vision can help achieve your goals with as little interference as possible.
Five cases where people recognized themselves in fictional works and brought lawsuits:
Costanza v. Seinfeld (1999): Jerry’s college friend, Michael Costanza, sued Seinfeld, Larry David, Castle Rock, NBC, Shapiro/West and Sony for $100 million, claiming violation of privacy, alleging that the Seinfeld character George Costanza is based on him. The court dismissed the case because works of fiction and satire are protected by the First Amendment.
Marlin v. New Line (2000): The villain in the movie Boiler Room is a stock swindler named J.T. Marlin. A real person named John Tepper Marlin is Chief Economist in the New York City’s Comptroller’s office. The writer-director of Boiler Room (Ben Younger) once worked for Marlin in the Comptroller’s office. Marlin did not appreciate the homage and sued for $11 million. Case settled.
Tamkin v. CBS (2009): Married real estate agents Scott and Melinda Tamkin did a Google search of their names and found an episode description of C.S.I. that featured dirty-dealing, S&M-loving real estate agents named Scott and Melinda Tamkin. The couple alleged that a house sale involving the Tamkins and a C.S.I. producer (listed as co-writer of the episode) had fallen apart four years prior.
The Tamkins filed a $6 million defamation and invasion of privacy suit against the producer, CBS and Jerry Bruckheimer Television, saying that the producer humiliated them and cost them potential business. To the studio’s credit, clearance discovered and changed the characters’ names before filming, but casting calls had listed the original names. Eventually, the Tamkins’ case was dismissed. The Defendant’s First Amendment Rights took priority based on a special California law that places a premium on protecting certain free speech.
Moore v. Weinstein (2009): Rock & Roll Hall-of-Famer Sam Moore, one half of the ’60s Stax Records duo Sam & Dave, filed suit against producers Harvey and Bob Weinstein for the film Soul Men. Moore alleged that the movie is closely patterned on the lives and career of Sam & Dave. One of their best-known hits was “Soul Man,” and they were often billed as the “Soul Men.” After an aggressively fought litigation, a Tennessee court granted summary judgment to the Weinstein Company and dismissed the case.
Jeffey Sarver v. Summit Entertainment, Voltage Pictures, Kathryn Bigelow & screenwriter Mark Boal (2011): Court dismissed the case brought by a veteran claiming he was the soldier portrayed in the film The Hurt Locker, because screenwriter Boal was embedded with his unit as a reporter and he was free to write about what he witnessed.
This article originally appeared on the MovieMaker website. MovieMaker Magazine is the nation’s leading resource on the art and business of making movies and the world’s most widely read independent film magazine.
Featured Image: The Perfect Storm © 2000 – Warner Bros. Entertainment, Inc. Courtesy of MovieMaker