A
common concern of filmmakers and writers is how to
protect themselves from being sued by people they
actually or loosely portray in their works.
Sometimes changing the names of characters
can provide a measure of protection, but not always.
In
the recent case Clark v. Random House, Inc.,
library-worker Daria Carter-Clark filed suit against
Joe Klein, author of the best-selling novel
“Primary Colors” and his publisher for injuring
her reputation. “Primary Colors” was based on
the 1991 presidential primary campaign of Bill
Clinton although the novel’s candidate is named
Governor Stanton. Carter-Clark’s claims arose from
a scene in the novel in which the fictional Governor
Stanton emerges from a hotel room unkempt and
tucking in his shirt, with a character named Ms.
Baum. Carter-Clark alleged that people who read the
novel falsely assumed that she was Ms. Baum and that
she had romantic relations with Governor Clinton. In
real life Clinton had made an appearance at the
library where she had worked, but there was no
intimate contact between them.
The
Court noted that “any purported similarities”
between Carter-Clark and Ms. Baum’s character,
such as that they both worked at the library, were
“superficial” and thus the scene that
Carter-Clark objected to in the novel was not really
“of and concerning” her. In response to
Carter-Clark’s claim that the publisher was
negligent in not investigating the facts, the court
noted that because the book was fiction, the
publisher was not obligated to undertake such an
investigation.
Quite
the opposite result was found in the 1934 English
case of Youssoupoff v. MGM, where MGM was
found liable for a film that it marketed as factual,
although it was a fictionalized account of
historical incidents. MGM’s film featured a
character named Princess Natasha who resembled the
real-life Russian Princess Irina Youssoupoff. In the
film Princess Natasha was either ravaged or seduced
by Rasputin, a man with the worst possible
character. The movie showed Rasputin’s murder by
several men, including the Prince that the Princess
was intended to marry. Irina brought suit for libel
claiming that the public had come to identify her as
a female of questionable repute as a result of the
movie.
Prior
to the release of this movie, Irina's husband had
published a book discussing his participation in the
murder of Rasputin. As a result, the court found
that the Prince character in the film, Prince
Chedgodieff, was likely to be perceived by viewers
to be Prince Youssoupoff and lead viewers to
conclude that Natasha was indeed Irina. Because MGM
had described the film as factual and commented that
some of the principal characters were alive the jury
concluded that a reasonable viewer would perceive
Princess Natasha to be Princess Irina. This case is
often cited as an illustration of the principle that
you can defame a person even if you don’t name
them provided that the
context and circumstances of the remark would
enable the listener to know the identity of the
person defamed.
Courts
are likely to approach such claims on a case-by-case
basis and to make very fact-specific decisions.
One
factor that courts and juries may consider is the
format and marketing of the movie or book. Is it
advertised as purely fictional, as based on
real-life events or as authorized by the subject?
Obviously, the more a film or book is purported to
reflect real events, the more responsibility the
filmmaker or author has to represent its characters
accurately and the greater the liability the
filmmaker may face for failing to do so. Likewise,
the more similarities between the fictionalized and
real-life characters, the greater the likelihood
that the plaintiff will have a valid claim.
As
these cases show, both the nature of the work in
question and the specificity of the fictional
characters in relation to their possible real-life
counterparts are crucial factors in the determining
liability. If
characters share substantial rather than superficial
similarities, such as killing Rasputin, merely
changing the fictional character’s name is not
likely to insulate against liablity, regardless of
whether the work is touted as factual or fiction.
To
read the full cases see Youssoupoff v. MGM,
Eng. Ct of App., 50 Times L.R. S81, 99 A.L.R. 864
(1934); Carter-Clark v. Random House, Inc., 793 N.Y.S.2d 394, 2005
N.Y.App.Div. 4202 (App.Div. 2005).
Mark
Litwak is a veteran entertainment attorney and
producer’s rep based in Beverly Hills, California.
He is
the
author of six books, including the
recently published Risky Business, Financing and
Distributing Independent Film
(Silman-James, 2004). He is the author of the CD-ROM
program Movie Magic Contracts, and the creator of the Entertainment Law Resources web site:
marklitwak.com. He can be reached at law@marklitwak.com.
