As an entertainment attorney I am often called upon to assist writers who have gotten themselves into trouble because they don't understand how their work infringes 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.[1]

TROUBLE FROM PEOPLE PORTRAYED IN YOUR WORK

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, however, without infringing 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 may 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.[i]

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," have said that this is a work of fiction, and have 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.[ii] You can be liable for defaming an individual even if you do not name her.

An interesting case is Leopold v. Levin. The plaintiff was Nathan Leopold, who pleaded guilty in 1924 to kidnaping 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's 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. That is because the common law[iii] 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? Because 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. So 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. This privilege has been largely superseded, however, by a constitutional privilege applied in the context of statements about public officials or public figures.

Public figures,[iv] such as celebrities, or public officials, such as senators, have a much higher burden in order to meet 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 of the truth.

Plaintiffs often find it difficult to prove that a defendant acted with actual malice. That is why so 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.

Like 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:[v]

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.

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 of a kind that would be 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.

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.

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 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, nor 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 not true. While Spahn could not prevent publication of an unflattering biography simply because he didn't like its contents, this fictitious report masquerading as fact was not protected.

C. THE RIGHT OF PUBLICITY

The right of publicity is the right of individuals to control the use of their name and likeness[vi] in a commercial setting. You cannot put a picture of another person on your brand of pickles without their permission. The right of publicity is typically exploited by celebrities who earn large fees by endorsing products.

The right of publicity is similar to the appropriation form of invasion of privacy. The principal difference is that the right of publicity seeks to ensure that a person is compensated for the commercial value of his name or likeness, while the right of privacy seeks to remedy any hurt feelings or embarrassment that a person may suffer from such publicity.

Celebrities may have difficulty proving damages for invasion of their privacy because they necessarily sacrifice some solitude and privacy by virtue of their fame. How can a celebrity claim that the unauthorized use of his likeness on a product embarrassed and humiliated him while at the same time he willingly appears in television commercials? By thrusting themselves into the public eye, celebrities waive much of their right of privacy. On the other hand, celebrities have an especially valuable property right in their names and likenesses -- for which they are often paid handsomely.

Under either a publicity or privacy theory, subjects can recover for some unauthorized uses of their names and likenesses. A problem arises, however, when one person's publicity/privacy rights come in conflict with another person's rights under the First Amendment. Suppose a newspaper publisher wants to place a picture of Cher on the front page of its paper. Is her permission needed? The answer is no.

Although Cher's name and likeness is portrayed in the newspaper, this "product" is also a form of "protected expression." Products such as books, movies and plays are modes of expression protected by the First Amendment. The First Amendment also allows journalists to write about others without their consent. Otherwise, subjects could prevent any critical reporting of their activities. When one person's right of publicity conflicts with another person's rights under the First Amendment, the First Amendment rights are often, if not always, paramount.

When the likeness of Elvis Presley is used on an ash tray, however, there is no expression deserving protection. The seller of this product is not making a statement or expressing an opinion. He is simply trying to make money by exploiting the name and likeness of Elvis. Since there are no competing First Amendment concerns, the right of publicity in this instance should prevent the unauthorized use of Elvis's likeness. In summary, the law draws a distinction between products that contain protected expression and those that do not.

Courts have struggled with the issue of whether the right of publicity descends to a person's heirs. In other words, when a celebrity dies, does his estate inherit his right of publicity? Can the estate continue to control the use of the celebrity's name or likeness, or can anyone use it without permission?

Some courts have held that the right of publicity is a personal right that does not descend. These courts consider the right similar to the right of privacy and the right to protect one's reputation (defamation). When a person dies, heirs don't inherit these rights. Suppose, for instance, that you were a descendent of Abraham Lincoln. An unscrupulous writer publishes a defamatory biography claiming Abe was a child molester. You couldn't sue for defamation or invasion of privacy. Perhaps this is why many scandalous biographies are not published until the subject dies.

In California prior to 1984, the courts held that the right of publicity was personal and did not descend. In 1984, however, the California legislature changed the law. Civil Code Section 990 now provides that the right of publicity descends for products, merchandise and goods, but does not descend for books, plays, television and movies. The statute was recently amended to extend protection so that heirs can enforce this right for up to 70 years after the death of a celebrity.

A similar statute, California Civil Code Section 3344 prohibits the unauthorized use of the name and likeness of living individuals. Both statutes provide exceptions for uses in the news and public affairs arenas in an attempt to balance First Amendment rights against rights of publicity and privacy.

In other states, although the right to publicity descends, the rights of the heirs may be outweighed by First Amendment rights. An interesting case is Hicks v. Casablanca Records, which concerned a movie made by Casablanca Records called "Agatha." The movie was about the well-known mystery writer Agatha Christie. The story was a fictionalized account of the eleven day disappearance of Christie in 1926. The film portrayed her as an emotionally unstable woman engaged in a sinister plot to murder her husband's mistress. An heir to Christie's estate brought suit to enjoin Casablanca from distributing the movie, alleging infringement of Agatha Christie's right of publicity.

While the right of publicity descends in New York, where the case was tried, the Christie estate nonetheless lost the suit. The court found that Casablanca's First Amendment rights outweighed the estate's right to control the name and likeness of Christie.

D. UNFAIR COMPETITION

The law of unfair competition prevents a person, for instance,  from establishing a movie studio and calling it "Paramount Pictures" if he/she is not affiliated with the well-known company. A person would also be barred from displaying the Paramount logo or using any other mark that might mislead or confuse consumers by leading them to believe that films are genuine Paramount movies when they are not.

The names of persons and businesses may become associated in the public mind with a supplier of products or services. The name can thus acquire a secondary meaning, and the supplier can acquire trademark rights even if he does not register the name as a trademark. In Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., the defendant exhibited a pornographic movie, "Debbie Does Dallas," which portrayed a "Texas Cowgirl" engaged in sex acts. The character wears a uniform strikingly similar to that worn by the Dallas Cowboys Cheerleaders. Ads for the movie showed the character in the uniform and included such captions as "Starring Ex-Dallas Cowgirl Cheerleader Bambi Woods."

The Dallas Cowboy Cheerleaders brought suit alleging that they had a trademark in the particular combination of colors and the design of their uniforms. The court agreed and issued an injunction against further distribution of the film. Filmmakers should take note that if they portray people or products in a way that is likely to confuse the public as to the origin of a product, they may be liable for unfair competition.

E. DEFENSES

Here are some guidelines you may follow to avoid liability from subjects portrayed in your script or film.

1) OBTAIN RELEASES: Obtain releases whenever possible. It never hurts to have a release even if it is not legally required. Do not forget to get releases from the immediate family and friends of a subject if those people appear in the story.

2) FICTIONALIZE THE STORY: Change the identity of the individuals, the names of the characters and the location so that the public will not be able to identify any characters with any living individuals.

3) ADD A DISCLAIMER: If your characters are fictional, add an express disclaimer to that effect so viewers will not be confused.

4) PRIVATE INDIVIDUALS: Be especially careful about portraying living individuals who are not public officials or figures. Remember that deceased individuals cannot sue for defamation or invasion of privacy, and that public figures and officials have to prove actual malice in order to recover. Thus, a filmmaker is most vulnerable when portraying living private individuals.

5) ASSEMBLE EVIDENCE TO PROVE THE TRUTH: Make sure you can prove that any defamatory statements you make are true. Annotate your script with the sources of your information so that you can document its truth and show that you acted carefully and without actual malice.

6) CLEAR THE SCRIPT: Have an attorney closely review your script for potential liability before production. If you can change the names of subjects and the setting without detracting from the dramatic value of the story, do so.

7) OBTAIN INSURANCE: Make sure the production company obtains an Errors and Omissions (E & O) insurance policy and that it includes you as a named insured.

Annotation Guidelines

Screenwriters should annotate their scripts to document the source of their work. A careful annotation will help a screenwriter defend against defamation and invasion of privacy lawsuits by demonstrating that the writer acted carefully. Recall that when a public figure or official sues for defamation, he or she must prove that the defendant acted with "actual malice."

Annotations should specify the source of all script elements except those elements that are completely fictional and arise wholly from the writer's imagination. Script elements include characters, events, settings and dialogue. Annotations are typically written in the margin of the script or included as footnotes or endnotes to the text. Annotations should include the following information:

1. CHARACTERS: For each character, add the following information:

(a) Whether the character is a real person, a fictional or a composite character.

(b) For real characters, whether the actual person is living or dead.

(c) For composite characters, the name(s) of actual person(s) on whom the composite character is based, and what traits can be attributed to the real person(s).

2.  SCENES: Note whether each scene portrays fact or fiction

(a) If fact, or an inference from fact, describe the source material including the following:

(i) For books: title, author, publisher and page(s).

(ii) For newspaper or magazine articles: title, author, publisher, and  page.

(iii) For materials obtained from the Internet: author, title of article and web site address. If material has been taken from another medium, note the title,  author, publication date, and where the work first appeared.

(iv) For materials based on radio or television interviews or programs: date and time of broadcast, broadcast station or source, interviewer and program name.

(v) For interviews: name of subject, whether notes or tapes exist, reference to tape or transcript page number.

(vi) For trial or deposition transcripts: the court or other forum, date,  name of the person testifying, and transcript page number.

(vii) To the extent possible, multiple sources should be identified for each script element.

(b) If partly fact and partly fiction, indicate which portions are fact and which are fiction. For factual parts, describe source material as specified in Paragraph 2(a) above.

(c) If entirely fictional, notation is not required.

3.  MISCELLANEOUS:

 

(a) Copies of reference materials referred to in annotations should be retained for at least five years after the film or program has been released. Materials should be cross-indexed by script page and scene numbers.

(b) If margin annotations are coded to avoid repeated lengthy references, a key to such coding should be provided.

(c) If a Writer's Guild member is asked to annotate a script, this request must be made at the outset of the assignment.

[1]. Please note that the information provided in this article is not a substitute for consulting with an experienced local attorney and receiving counsel based on the facts and circumstances of a particular transaction. Many of the legal principles mentioned are subject to exceptions and qualifications which may not be noted in the text. Furthermore, laws  are subject to revision and may not apply in all countries and regions.

[i] An author's organization and patterning of ideas and facts may be protected, however.

[ii] Of course, Jackie Kennedy's right to sue for defamation and invasion of privacy expired when she died.

[iii] The common law is the law of precedent that arises from cases decided by courts. Another type of law is statutory, or law that has been enacted by a legislative body such as Congress.

[iv] There are two types of public figures: 1) persons of pervasive fame or notoriety, such as a celebrity sports figure; and 2) persons who voluntary inject themselves into a particular public controversy and become public figures for that limited range of issues.

[v] Privacy actions need not fall within one of these four categories to be actionable.

[vi] Voice and signature are also protected under this right.

Self-Defense Checklist

1. GET ALL PROMISES IN WRITING. Don't ever accept oral assurances from a producer or studio executive. If they promise to spend $50,000 in advertising, get it in writing. If there is not enough time to draft a long-form contract, obtain a letter reiterating their promises.

2. REGISTER ALL WORKS WITH THE WRITER'S GUILD. Before you pitch a story, register the work with the Writer's Guild. Non-members may register. Alternatively, register your work with the Copyright Office.

3. OBTAIN AN ARBITRATION CLAUSE: Make sure all contractual disputes are subject to binding arbitration with the prevailing party entitled to reimbursement of legal fees and costs.

4. WATER DOWN THE WARRANTIES: Make the warranties to the best of your knowledge and belief, rather than absolute. With an absolute warranty, if you make a good faith mistake and defame another, you may be liable for damages.

5. RETAIN POSSESSION OF YOUR NEGATIVE: Give the distributor a lab access letter rather than your original negative. If they breach your contract, you can cut off their access to the negative. Try to retain your original still photos and any artwork.

6. GET ADDED TO THE E & O POLICY: Have yourself added as a named insured to the Errors and Omissions Insurance policy. If you are on the policy, the insurance company will pay for your defense and damages that may arise from liability if you inadvertently defame someone or infringe their copyright.

7. CHECK REFERENCES: The best contract in the world can only protect you so much against a scoundrel. Thoroughly check out any party you contemplate doing business with. For distributors call other filmmakers who have worked with them. People who have lousy reputations have earned them.

8. TERMINATION CLAUSE: If the other party defaults you should have the right to terminate the contract and regain all rights to your film in addition to monetary damages. Writers should insist on a reversion clause so if a script is bought and not produced within five years, all rights revert to the writer.

9. INVESTOR MONEY: Never make any "offers" to investors or accept any investor money without fully complying with all applicable state and federal security laws. Have an entertainment attorney with experience in securities prepare the paperwork for you.

10. SAVE COPIES: Retain copies of all correspondence, contracts and every draft of your screenplay. When you make a story contribution or make an oral agreement, follow up with a letter reiterating the terms of your agreement.

11. MISCELLANEOUS: Delivery schedules, reversion of advertising materials, territory minimums, separate bank accounts and limitations of remedies. Obtain an experienced advisor to assist you on these and other points.