“Any similarity to actual persons, living or dead, is purely coincidental.”
Nearly every film has some variation of this phrase, and for a good reason. Life story rights, the right of publicity, privacy rights, and defamation are all involved in the necessity for such a disclaimer. Defamation is a genuine risk for films whether large or small, documentary or narrative fiction.
As one source records, it all started when Princess Irina Alexandrovna Youssoupoff sued MGM in the 1930’s over the film Rasputin and the Empress. The studio eventually settled with the princess to the staggering tune of a million dollars (over $18 million in today’s money).
The studio lost money on the project and shelved the film for decades, but learned a valuable lesson about defamation and film.
Generally speaking, defamation is a catchall term for any statement that hurts someone’s reputation. Technically, defamation through film (or television) is considered libel, which is defamatory statements and pictures published in print, writing or broadcast in the media. Verbal defamation is labelled slander. Each state has its own statutes more specifically defining each of these terms.
It’s important to note that, for defamation lawsuits, the person does not have to be named. It’s sufficient that a reasonable person would infer or deduce the identity of the person in question. In Rasputin and the Empress, MGM changed the name of the princess character, but the courts held that a reasonable viewer would correctly identify the character with the actual princess.
The Defamation Dilemma
Using real people adds authenticity to narrative fiction (such as using Larry King to do a news segment in Contact or Ghostbusters, or digitally inserting Forrest Gump next to JFK), and documentaries are almost exclusively about real persons.
Every time you present a person in a potentially negative light, you open yourself and your film up to the risk of a defamation or libel lawsuit.
Even a line as simple as this one, from American Hustle in which Jennifer Lawrence’s character explains that microwaves take nutrition out of food, can create legal exposure:
On the other side of the continuum, documentary filmmakers can present their subjects in a negative light through editing. Katie Couric’s Under the Gun showed her subjects saying nothing, and they sued. The claim was that, by editing in silence, the documentary misrepresented those filmed.
Defamation and libel lawsuits are all too common in film. To see the danger that your film faces each time you involve individuals in controversial subject material, check out these notable examples:
- The Wolf of Wall Street – A Wall Street broker claimed he was the inspiration for the film’s character Nicky “Rugrat” Koskoff.
- The Hurt Locker – This film’s screenwriter was sued by a former military acquaintance who perceived the film portrayed him as a “bad father, bereft of compassion, fascinated with war and death, and disobedient.”
Filmmakers—whether documentary or narrative—would do well to understand the legal risks and exposure that might be in their films.
A Script Clearance Report from The Clearance Lab does just that.
Each report contains a thorough analysis of characters, locations, and plot to determine what risks might be hidden in the script. In addition to providing solid legal analysis on defamation risks, the Script Clearance Report also identifies potential risks with trademarks and copyrights.
Set your mind at ease, and minimize your legal exposure to defamation and libel lawsuits. Order a Script Clearance Report today.