The Delicate Art of Making a Bio Pic w/o Getting Permission (Part 2)
Rights of Publicity
The Right of Publicity is both a statutory and a common law right to limit the public use of one's name, likeness and/or identity, particularly for commercial purposes. As opposed to the Right of Privacy, the Right of Publicity survives death. The applicable law is based on the person’s domicile when living, or where they were domiciled on the date of death.
The leading U.S. case on the issue of the Right of Publicity is Ruffin-Steinback v. Depasse 82 F.Supp.2d 723 (2000). The facts of Ruffin-Steinback involved NBC airing a four-hour mini-series depicting the musical group the Temptations as recounted in a novel written by Otis Williams, a founding member of the legendary recording group. No one other than Williams gave permission to the producers of the mini-series and so the other members of the group sued the producers. On appeal, the court ruled that the term ‘likeness’ (as relating to the Right of Publicity) does not include general incidents from a person’s life, especially when fictionalized. The narrative of an individual’s life, standing alone, lacks the value of a name or likeness that the tort requires. The court specifically held that:
“We agree with the district court that assuming each of the inaccuracies described in plaintiffs’ complaints and submissions is inaccurate in the manner described by plaintiffs, defendants’ actions in producing the story written by Otis Williams about the Temptations cannot be considered so extreme in degree as to go beyond all bounds of decency. The district court did not err in granting summary judgment on these claims.”
The court in essence upheld the earlier ruling that depicting one’s life-story without his or her permission does not constitute a violation of the Right of Publicity, barring any depictions that are “so extreme in degree as to go beyond all bounds of decency”.
Defamation
The tort of defamation involves the publication of anything false which is injurious to the reputation of another or which tends to bring them disrepute. As a filmmaker you should avoid doing this unless you can confidently claim one of the defenses set forth below.
If you are offering your film as truthful, you want to have “double sourcing” on everything. Double sourcing simply means that you have two separate and independent sources for each factual assertion in your script. This is especially important for anything that might offend anyone, but especially the subject of the remark or representation. The second source should be truly independent of the first source. For instance, two different newspaper articles written from the same press conference or press release is not really a double source. The same fact verified by a second person not at the press conference would be a double source.
There are a number of common defenses to a suit for defamation. However, none of them is as good as never getting sued in the first place. Be extra careful when you make statements about individuals who are living and identifiable. The defenses to a defamation claim are:
Truth: This is the classic defense. Everybody seems to know that truth is a defense. Even if a statement is not completely true, you should win with a public figure if you have checked the facts out and you have a reasonable basis for believing they are true. Unfortunately for you, reasonable people may differ on what amounts to a reasonable basis for believing anything. Check the facts carefully. Double source any dubious or inflammatory claims.
Opinion: Everybody has a right to his or her opinion. If you are stating an opinion, make it very clear that it is an opinion. “Jack is a thief” is libelous. “I don't like Jack’s performance” is an opinion. This can be tricky. The courts don't let you off the hook with merely a perfunctory statement such as “It is my opinion that . . .” and then go on with a string of libelous statements. It must be clear to the reasonable listener that the statement is an opinion, not a fact.
Humor/Parody/Satire: Humor is a defense because, if everyone hears a comment as a joke, you have not damaged the reputation of whatever or whoever is the butt of your joke. However, there is a big difference between something that draws laughs or chuckles from most listeners and something that insults someone. Be careful of the latter.
It is likely that the makers of The Social Network utilized the double-sourcing method when finding the facts used to base the film’s script on. Regardless, they evidently did not include any events or statements in the movie that could give rise to a defamation claim and it is safe to say that it was by no accident. When you produce your docudrama you should use extra care not to utilize your artistic license so far as to portray inaccurate events or statements that could be injurious to the reputation of the film’s subject or which tends to bring them into disrepute.
Can You Use The Name Of Your Film’s Subject In The Title Of The Project?
So far we have discussed what to do or not to do with regards to creating the content of your film, but what about the film’s title? Can you use your film’s subject’s name in the film’s title?
Let us look at another well-known U.S. case. The case of Rogers v. Grimaldi, 875 F.2d 994, involved a lawsuit started by Ginger Rogers over the use of the title “Ginger and Fred” for a fictional movie that only obliquely relates to Rogers and Astaire. Rogers argued that the defendants violated the Lanham Act by creating the false impression that the film was about her or that she sponsored, endorsed, or was otherwise involved in the film, violated her common law right of publicity, and defamed her and violated her right to privacy by depicting her in a false light.
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