How can fictional works present unflattering portrayals of living people without legal comeback?
November 5, 2008 11:45 AM   Subscribe

Recent dramas have used (without ambiguity) the name and image of real living figures and events in fiction and film. How this is legally possible? Is it covered by Fair Use?

I have searched as well as I can on the internet and previous posts, but can't find a succinct or clear answer. I understand that the relevant laws vary internationally, but I'm confused about some recent dramas that include real, living historical (and presumably litigious) figures, not in an entirely flattering light, though clearly avoiding libellous portrayal. How are writers able to do this? I'm thinking of W., Frost/Nixon, The Queen, even the Tom Cruise "cameo" in American Psycho (the novel). Fair use (for parody or satire) doesn't seem to apply to these. How does it work legally?
posted by Hugobaron to Media & Arts (17 answers total) 4 users marked this as a favorite
It's not "fair use" because fair use applies to someone else's creative output.

This is about reality. There's no need to get anyone's permission to create a work based on reality. The only question is if you commit libel; assuming you don't... it's all wide open.
posted by Tomorrowful at 11:52 AM on November 5, 2008

Ideas are unprotected by copyright. Expression is what is protected. There are other rights that may concern the idea of a person ("right of publicity" and European moral rights) but facts can't be copyrighted.
posted by Inspector.Gadget at 12:00 PM on November 5, 2008

Best answer: Tomorrowful is correct that this doesn't constitute fair use, because that would involve using someone else's copyrighted material. Living persons aren't copyrightable. Furthermore, copyright only applies to specific expressions, not underlying ideas or information.

I think the piece of information you're missing here is that while it is generally not permitted to use someone's likeness without their permission, i.e. their actual physical appearance, one may portray anyone one likes as long as a proxy or actor is used. So if you wanted to make a movie about, for example, George Bush, all you'd really need to do is 1) make it clear that the account is fictional or at least dramatized, and 2) use an actor. You probably couldn't use actual footage of a real person in a fictional account, but you could certainly film your own using an actor, even down to reproducing actual events in a dramatization.

News reporting is protected from liability under libel theories by virtue of being "true," in that the truth of a statement is a complete defense to libel.
posted by valkyryn at 12:09 PM on November 5, 2008

Sorry if this is a faux pas to piggy-back but it seems related (and feel free to delete) but how does a company like Chevy use Nixon or Rosa Parks in their ads? Is it not invasion of privacy, appropriating someone's likeness for commercial gain?
posted by starman at 12:12 PM on November 5, 2008

Best answer: The concept of a public figure?
Public figure is a legal term applied in the context of defamation actions (libel and slander) as well as invasion of privacy. A public figure (such as a politician, celebrity, or business leader) cannot base a lawsuit on incorrect harmful statements unless there is proof that the writer or publisher acted with malice (knowledge or reckless disregard for the truth). The burden of proof is higher in the case of a public figure.

The controlling precedent in the United States was set in 1964 by the United States Supreme Court in New York Times Co. v. Sullivan. It is considered a key decision in supporting the First Amendment and freedom of the press.
posted by jepler at 12:18 PM on November 5, 2008

Well, "fair use" only applies to copyright, not defamation.

The answer is, at least in the United States, public figures are fair game for criticism/comment. The standard of evidence for defamation is set extremely high. The plaintiff must show either intentional falsehood or gross negligence on the part of the defendant. Unless there is a smoking gun that the author/director either knew the charges were false, or suspected they could be false but refused to factcheck, there is no case. Furthermore, labeling a work up front as a "dramatization" provides a strong defense that the audience isn't expected to take everything literally.

Practically speaking however, it's often the case that seeking legal remedy for defamation just draws more publicity to the charges. As an example, some people interpret Tom Cruse's aggressive pursuit of published rumors that he's homosexual as legal action attempting to hide the truth, and news of his legal action reached a far broader readership than the original tabloids. For national leaders, it's impossible to pursue such a case without raising specters of state censorship.

starman: That use strikes me as legally sketchy, and a quick google search on the matter seems to suggest that Chevy may be on thin ice there.

On preview: what jepler said.
posted by KirkJobSluder at 12:23 PM on November 5, 2008

Best answer: Couple of things ...

* It's possible to mention or portray public figures in various works, precisely because of their nature as being public figures (e.g. Frost/Nixon, The Queen). This is a bit of a legal grey area, but reasonably understood when it comes to biographical works. That said, a person does retain rights to their likeness. You couldn't advertise the movie W. with an actual photo of George Bush, for example, without Bush's permission, or use the Tom Cruise image without permission from Tom.

* You mention parody, which is a powerful argument for Fair Use. It's entirely possible that the American Psycho usage could argue parody/satire.

* Of parallel concern is the copyright that exists on the media that records the likeness. Tom Cruise owns his face. But if I take a picture of Tom in a public place where he has no expectation of privacy (e.g. walking down the street), I own the copyright on the picture. So, if I were to use Tom Cruise's face in a movie, I'd need Tom's permission and the permission of the copyright holder of the photo/film that is used, even if it was acquired in the course of collecting news (e.g. an AP photo of Tom at a movie premiere).

* Finally, such usages are only enforced by the rights-holder themselves. There's no third-party "IP police" that enforces things. If there's no objection from the rights-holder, there's no problem. This is interesting, because you see rights-holders issuing objections to things that you'd think they'd have no problem with, like fan fiction and fan Web sites. They're doing it not because of that particular infringement, but to establish a pattern of protecting rights across all media everywhere.

the truth of a statement is a complete defense to libel

That's not entirely true, because a finding of libel includes scope and scale considerations. You could truthfully report on something, but blow it out of proportion and ultimately be found in the wrong (e.g. "Person X was seen spanking his child! Person X is a child abuser!")
posted by Cool Papa Bell at 12:28 PM on November 5, 2008

Response by poster: This is incredibly helpful already, and I'm keen for more legalistic input - that's what I'm after. No problem, Starman, though I'm not interested in things like image or footage rights (like Laurence Olivier's estate selling his image for the Sky Captain movie, or Brando in Superman Returns, or maybe Rosa Parks news footage in an advertisement) so much as the ethics and legality of portraying (with an actor or in prose) a real public figure as - let's say - professional, yet unpleasant or laughable. So far you have all been very illuminating indeed. I'm in the UK but our laws are very comparable on this issue I think.
posted by Hugobaron at 12:30 PM on November 5, 2008

Response by poster: On preview: wow this is happening so fast. Thanks again.
posted by Hugobaron at 12:31 PM on November 5, 2008

Is it not invasion of privacy, appropriating someone's likeness for commercial gain?

Technically, no. It's not privacy. It's an infringement of publicity rights. The estate of Rosa Parks owns the rights to Rosa's likeness.

How does Chevy use it in the ad? They probably just paid for it -- both for Rosa's likeness and for the copyright holder of the media. Parks previously sued OutKast over publicity rights...

The lawsuit was settled April 15, 2005. In the settlement agreement, OutKast and their producer and recorded labels paid Parks an undisclosed cash settlement and agreed to work with the Rosa and Raymond Parks Institute for Self Development in creating educational programs about the life of Rosa Parks.

But she's dead now ... so it doesn't surprise me that whoever is controlling her estate wants to profit from it, or add to a charitable fund.
posted by Cool Papa Bell at 12:37 PM on November 5, 2008 [1 favorite]

Ryanair got spanked earlier this year for using Sarkozy and Bruni in its advertising without permission.
posted by the latin mouse at 1:07 PM on November 5, 2008

Best answer: Here's how Patry on Copyright treats the issue:

In Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980), the Second Circuit, per then Chief Judge Irving Kaufman went beyond denying copyright to historical facts:

"[W]here, as here, the idea at issue is an interpretation of an historical event, our cases hold that such interpretations are not copyrightable as a matter of law … to avoid a chilling effect on authors who contemplate tackling an historical issue of event, broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots."

The first sentence of this passage treats historical interpretations as ideas; a subsequent passage fleshed this out:

"In the instant case, the hypothesis that Eric Spehl destroyed the Hindenburg is based entirely on the interpretation of historical facts, including Spehl's life, his girlfriend's anti-Nazi connections, the explosion's origin in Gas Cell 4, Spehl's duty station, discovery of a dry-cell battery among the wreckage, and rumors abut Spehl's involvement dating from a 1938 Gestapo investigation. Such an historical interpretation, whether or not it originated with Mr. Hoehling, is not protected by his copyright and can be freely used by subsequent authors."

Hoehling's restrictive view of copyright in historical works was questioned five years later by the Supreme Court in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), in reversing another opinion by Judge Kaufman:

"Perhaps the controversy between the lower courts in this case over copyrightability is more aptly styled a dispute over whether The Nation's appropriation of unoriginal and uncopyrightable elements [from former President Gerald Ford's then unpublished memoirs] encroached on the originality embodied in the work as a whole. Especially in the realm of factual narrative, the law is currently unsettled regarding the ways in which uncopyrightable elements combine with the author's original contributions to form protected expression. Compare Wainwright Securities, Inc. v. Wall St. Transcript Corp., 558 F.2d 91 (2d Cir. 1977) (protection accorded author's analysis, structuring of material and marshaling of facts), with Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980) (limiting protection to ordering and choice of words.)

"We need not reach these issues, however, as The Nation has limited to lifting verbatim quotes of the author's original language totaling between 300 and 400 words and constituting some 13% of the Nation article."

The thrust of the Harper & Row Court's view of protection for historical works is, however, quite different from Hoehling:

"In preparing the book, Mr. Ford drafted essays and word portraits of public figures and participated in hundreds of taped interviews that were later distilled to chronicle his personal viewpoint. It is evident that the monopoly granted by copyright actively served its intended purpose of including the creation of new material of potential historical value."
posted by lockestockbarrel at 1:22 PM on November 5, 2008

Response by poster: This is brilliant. So I appreciate, from lockestockbarrel, the implications of basing fiction on historical/non-fiction documents already published. What about the necessary invention of dialogue and dramatic interaction (i.e. private - non-public/non-historically-documented events) which may plausibly have occured alongside documented events??
posted by Hugobaron at 2:30 PM on November 5, 2008

Best answer: What about the necessary invention of dialogue and dramatic interaction

One thing about Fair Use is that there's no hard-and-fast rules. Any legal claims would have to make logical arguments that would go before (in the U.S.) a federal judge, who would ostensibly evaluate all the angles and weigh the arguments of both parties.

So, in this example, the judge would have to weigh the value of the "invented dialog" against what the work needs to be effective as a work. Clearly, in the case of The Queen, there was no tape recorder in the room when Blair meet with the Queen, but you wouldn't have much of a movie unless you invented some dialog between them. If you can plausibly say, "This is what might have been said, given all that we know about the conversation from subsequent reports, and given the biographical and artistic aims of the work in question."

Moreover, you'd have to watch against libel. You couldn't, for example, invent a dialog in which Bush, Cheney and Rumsfeld discuss their party with three teenage hookers, because you're argument would have zero weight. Now, to invent some plausible dialog where Bush, Cheney and Rumsfeld discuss the Iraq invasion, when you have subsequent statements between the three about the substance of their meeting(s) about the subject ... then you have a legal leg to stand on.

Also, you can't libel a dead person. Nixon is dead (although Frost isn't), so invent all the Nixon dialog you want. ;-)
posted by Cool Papa Bell at 3:09 PM on November 5, 2008

Well if you're in the UK, you do need to be a little more careful. If you portray someone living in an unflattering light, you'd probably be okay in the US, but that can get you into real trouble in the UK even if what you say is true. There is no First Amendment to protect you if someone doesn't like what you're saying, and international plaintiffs are notorious for choosing to sue in the libel-friendly UK.
posted by valkyryn at 4:05 PM on November 5, 2008

Best answer: Like Valkyryn says, UK libel law is not comparable.

A New York journalist wrote a book recently called “Funding Evil: How Terrorism Is Financed and How to Stop It” which named - among others - a certain Saudi Arabian businessman* as a terrorist sympathiser.

Now, this book wasn't edited, published or sold in Britain. The author wasn't British and neither was the alleged terrorist fundraiser. However, because of Britains wet-ass libel system, he chose to sue here. His justification was that a handful of Brits had bought copies of the book online from American retailers.

So he won his case and the Americans now have to honor the British judgement, even though the guy would have been laughed out of court in the USA.

The US House of Representatives subsequently got cross party support for a bill to protect Americans from insane British libel judgements and to provide compensation where appropriate.

If you're interested, Adam Raphael's book on the Jeffrey Archer judgement has lots of horrifying case studies about other fucked up British libel rulings. It's old now, (it was written before Archer's imprisonment vindicated Raphael) but it's still worth checking out

* The businessman in question has expensive lawyers and an itchy trigger finger. He's recently been going after British bloggers reporting on the case, so I'm trying to be careful what I say. Google the book for the full story.
posted by the latin mouse at 8:45 AM on November 6, 2008

Response by poster: This was my first AskMeFi post and the responses have been brilliant. I see now that national law has a huge influence on this, and presumably films like W., Team America, etc. have been cleared by legal teams for various (all?) regions. This was prompted partly by recent satirical trends and partly by recalling that George Orwell was hauled in at proof stage to rewrite (to match exact letter-count lineation and pagination) all references to real persons and products in his 1936 novel Keep the Aspidistra Flying. I don't have a reference for this. Perhaps the intro to the Penguin edition? Anyway, thank you all.
posted by Hugobaron at 12:45 PM on November 9, 2008

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