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Tue 1 May 2007 11:36 AM

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Fact or fiction? That is the question

Lara Haidar on how filmmakers and producers can protect themselves against legal claims.

When working on a script or a movie, one area to pay attention to are the characters (and the facts about these characters) that you are depicting in your script/movie. If the character is a fictional character, made up in the writer's imagination, chances are you're in the clear. But if you are depicting a public figure or a real life person (a past or living celebrity of some sort e.g. an actress, a politician or a successful businessperson), you need to look at what information exactly you are using, or image you are portraying or you may simply be infringing that person's rights. If, however, there is a chance that the public could identify a real person in your characters, you could be liable to attack on a number of grounds.

If you are using fictional characters made up in your or your writer's imagination, you generally do not need to obtain any permissions or releases although, using a disclaimer in relation to likelihood of resemblance to actual living persons may be a good idea (more on that later). Sometimes, however, the characters in a script are based on real individuals, and the scriptwriter may borrow some facts, personality traits etc. centering round the lives or characters of these real individuals without liability. If a fictional character is based on a real life person but the public cannot identify that real life individual from the context, there is little risk of liability. On the other hand, if the real life person is easily identifiable (even if you do not name that person) and there is an element in your script that would constitute defamation or invasion of privacy rights, your liability may be engaged.

There may be various factors that come into the assessment of whether the filmmaker/scriptwriter has infringed a person's rights and these include whether that person is a public figure or official, whether he/she is alive or deceased etc. Other factors include whether the information relayed has been disclosed by the concerned person and whether it is a common/established fact or has fallen into the public domain. These factors determine the extent to which the filmmaker's/scriptwriter's liability is engaged.

What kind of legal action could you face? The most likely grounds upon which you could be sued are defamation, invasion of privacy, right of publicity and unfair competition.


Defamation claim

Defamation is a false statement that causes damage to a person's reputation reflecting negatively upon that person's personal morality or integrity or subjecting them to ridicule or contempt. As a result of the statement, the person may suffer embarrassment and humiliation, as well as economic damage, such as the loss of a job or position etc. In order for the material to be non-defamatory, it has to fulfill one basic condition: truth. In other words, the statement made or the image portrayed of the person in question has to be true. The statements may be hurtful or put the person in an unfavourable light, but if they are true, the filmmaker is safe.

Having said that, the filmmaker has to prove that the statements or facts portrayed are true. Therefore, it is always a good idea to check the facts first and make sure you have some paper trail substantiating the same. There may be other defenses available to the filmmaker and these differ from country to country, and depend on the person subject to the defamation. One defense applicable in the US for example is the absence of malicious intent. In the US, public figures are often the target of talk show hosts and publishers and, in many cases, these publishers need only prove lack of malicious intent to clear away their liability.


Invasion of privacy rights

The right of privacy is basically what it says it is: a person's right to live one's life privately, safe from the public eye, without being subjected to unsought or unwanted publicity. It is a person's right to protect personal details from being released to the public, the "right to be let alone". This right terminates with the publication of the facts by the person, or with his consent. Like defamation, the right of privacy differs from country to country and is subject to legal restrictions.

Unlike defamation, legal redress can be sought without the need to establish that the concerned person sustained an injury to his/her reputation. Also, truth is not a defense against a claim for invasion of privacy. However, revealing matters of public record cannot be the basis for an invasion of privacy action and, an express or implied consent (from the relevant person) are valid defenses. So, if a person reveals private or personal facts in an interview or book, they cannot claim against you for invasion of privacy.


Right of publicity

The right of publicity is the right of a person to control the use of their name and likeness from (involuntary) commercial exploitation. You cannot use the image or photo of a person on a juice carton without their permission. The right of publicity is commonly exploited by famous figures who cash large amounts of money in return for endorsing third party products (think David Beckham and Pepsi).

The right of publicity seeks to make sure that a person is compensated for the commercial value of his name or likeness, i.e. that where a commercial exploitation happens, that person gets the economic benefit. Celebrities may have a difficult time proving damages for invasion of their privacy because of the nature of fame. If they are continuously in the public eye, it is difficult to claim privacy. However, they have highly valuable properties: their names and likenesses, for which they are often paid heftily. Depending on the country, the celebrity can recover for the unauthorized use of their names and likenesses.

The position may be clear when it comes to living celebrities but is less so when it comes to deceased ones. Issues of whether permission should be sought from the celebrity's estate and what is the period of protection that can be claimed by the latter arise and the position varies from country to country. There are, however, already established companies dealing with clearing rights of publicity for deceased celebrities and it is always a good idea to check first before you decide to use the likeness of James Dean for example.


Unfair competition

Unfair competition is where you use a well known entity's (person or business) name where you are not affiliated with that well known person or business, for example, calling your production company Universal Pictures. Tied into that is the use of a well know entity's trade mark or logo or using another mark which may be confusingly similar to the well-know entity's mark so as to cause confusion in the consumer public's mind that your products or services either originate from the same source (the well known entity) or, are in some form associated with that well known entity. This is punishable by law and it is best to come up with your own name and brand and/or seek proper affiliations before using a third party's name or brand.

There are some practical things you can do to avoid liability from people depicted in your script or film. For one, whenever possible, obtain releases or permissions from real life people to use their names, likeness, life stories etc. It is always a good idea to get a release even where one is not legally required - for instance in the case of death and where copyright has expired. Releases should be sought from the public person's immediate family and friends, if these appear in your story.

Secondly, you can protect yourself by making sure your fictional characters cannot be mistaken for real people. Give your characters different or unusual names, give them different personalities, and place them in different locations so that the public will not be able to identify any characters with any living individuals. If your characters are based on another party's work (a character in a book or a TV series), you might be infringing that other party copyright unless the work has gone into the public domain, or your use is considered a fair use. If you must use it, clear the rights (i.e. get a permission from that third party) first. You may "borrow" some personality traits but keep it novel. Movies based on graphic novels are on the popular rise at the moment so, if you have taken a particular interest in one of Frank Miller's heroes, you may ‘borrow' some of its personality traits, but make sure your character is distinctive and has its own profile.

Make use of disclaimers. You will often see these at the beginning of movies set out in an express obvious way. Insert these where they stand out and where viewers can see and read them clearly so that they are alerted in advance of watching the movie. You may wish to include other people in your movie who aren't famous (or infamous) and do not live in the public eye, but are regular individuals. Releases and permissions should be obtained from these people even more crucially because you cannot defend yourself against invasion of privacy for example by proving absence of malice. Keep proof of the truth. Make sure you have the substantiating evidence or documentation to prove that your statements are not defamatory and show that you carried out your homework and verified the facts. An easy way of doing this is to annotate the scripts to document the source of the work. The annotations should specify the source of all the script elements (including the characters, events, settings and dialogue), except for those fictional elements created by the writer. You can write these in the margin of the script or include them as footnotes to the text. If your information comes from a book, newspaper or magazine, keep a note of the name of the author, the publisher, the book title or the magazine name - better yet, keep a copy of the same handy.

Next, get an insurance. Make sure the production company obtains an Errors and Omissions insurance policy and that you name is included as the insured. Finally, seek legal advice.

More information on The Rights Lawyers is available on
www.therightslawyers.com

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