How can you make a film like The Social Networkwithout getting permission from Mark Zuckerberg?
This article is written for the sole purpose of providing general legal information and education and is not intended as a legal opinion specific to the laws of your jurisdiction.
So, after seeing The Social Network you decide that you too want to make a film about a famous person’s life, but you are not sure whether you will be able to get his or her permission. Is it possible for you to go ahead and make the film without getting the individual’s permission and without getting sued?
Well, to the surprise of some, the short answer is yes…in some cases. But while you may be among those that are surprised by this answer, it will likely not surprise you that the real answer to the question is more complicated than a simple “yes” or “no”. As with most legal issues, to comprehensively answer the question posed, a more in-depth discussion is required.
Furthermore, while it may be possible for you to make a movie about a famous person without getting sued, there are sound reasons why getting permission may still be the right choice for you. One such reason is the possible consequence to your E&O insurance deductible, which could become much higher if you do not get permission.
In this article we will first review the legal issues involved when making a film like The Social Network, then we will look at some practical reasons for securing permission from the subject of your film, focusing on how it could affect your E&O insurance deductible.
What is a Docudrama?
Let us start by looking into what category of film The Social Network falls under, and what the law has to say about it. While The Social Network was a movie that purported to be based on facts about actual people and events, it is safe to say that it is not a documentary. In other words, rather than attempting to accurately dissect the actual historical events that the film is based on, as is the typical approach of documentaries, The Social Network utilizes some artistic license in depicting select real-life historical events in a way that is intended to be appealing to drama-loving, movie-going audiences.
So what category of film applies to The Social Network? The answer is that it is a type of biopic commonly referred to as a “docudrama”. Docudramas have been judicially recognized in a number of U.S. court cases, including the case of Seale v. Gramercy Pictures 964 F.Supp. 918 (1997), which dealt with the motion picture entitled Panther. In Seale the court stated (my underlining for emphasis):
“…the film “Panther” is best categorized under the film genre of “docudrama.” He testified that the “key” to making a docudrama is to capture the “essence” of an historical event and not necessarily to recreate for the audience every historical detail of that event. …such major motion pictures as “Ghandi” and “JFK” are appropriately classified as docudramas.”
The court finds that the film “Panther” is a “docudrama” and not a “documentary” film. A docudrama is a “motion picture presenting a dramatic recreation or adaptation of actual events.” […] It “is a dramatization of an historical event or lives of real people, using actors or actresses. Docudramas utilize simulated dialogue, composite characters, and a telescoping of events occurring over a period into a composite scene or scenes.”
Clearly, by this definition The Social Network is a docudrama.
What Legal Issues Should You Look Out For?
Generally, when making docudramas about famous personalities, the legal issues to watch out for include Rights of Privacy, the tort of False Light, Rights of Publicity and the tort of Defamation. Let us now look at each of these issues in more detail.
Rights of Privacy
The Right of Privacy is the qualified legal right of an individual to have reasonable privacy in not having his or her private affairs made known or his or her likeness exhibited to the public having regard to that individual’s habits, mode of living, and occupation. In the case of deceased individuals, their Right of Privacy dies with them. This is not the case with living individuals, such as Facebook’s Mark Zuckerberg. However, the First Amendment of the American Constitution allows docudrama filmmakers the right to make a movie about any living person without permission, so long as it does not violate his or her privacy rights or defame them.
The Right of Privacy can take several forms. For example, you cannot “out” someone in any way. In other words, you cannot reveal the private facts of someone’s life (i.e. facts that are not publicly known) or intrude into someone’s private space in the course of your filmmaking. However, if the matter is of public interest, you can reveal it. Generally, the courts have held that the more famous an individual is, the more likely the matter is in the interest of the public.
So, in the case of famous living individuals, when making a docudrama about them you must be careful not to intrude on their Rights of Privacy, while with deceased individuals you need not be concerned about such rights. We can assume that the creators of The Social Network were careful not to violate Mark Zuckerberg’s Rights of Privacy since the deep-pocketed Internet mogul has not sued them to date.
The tort of False Light is one of several torts under the category of invasion of privacy where a defendant is accused of spreading falsehoods about a plaintiff that would be considered objectionable by the average person. The film Panther, which, as mentioned above, was the focus of the case of Seale, also discussed the tort of False Light. The film integrated actors playing fictitious characters with actors playing the roles of the real-life leaders of the “Black Panther Party”, an organization that was formed in Oakland, California in 1966. The Plaintiff in the case, Bobby Seale, was the co-founder of the Black Panther Party. Seale sued on the basis that the Defendants’ portrayal of him in the film placed him in a “false light” and therefore violated his common law Right of Privacy.
In the court’s analysis of the facts of the case it was recognized that Panther did not purport to maintain strict fidelity to fact and primarily represented a work of entertainment as opposed to a fact-specific historical account of events. Hence why the court used the term “docudrama”. The court even acknowledged that there were certain scenes that were made up for dramatization, and other significant, perhaps even landmark moments in Seale’s life that were omitted. The court further ruled that during some moments in the film there were indeed elements that portrayed Seale in a “false light”.
However, notwithstanding the above, the court ruled in favour of the filmmakers based on the court’s view that First Amendment constitutional protections have higher priority. The court stated that unless Seale could prove with convincing clarity that the filmmakers acted with actual malice, then “substantial accuracy” to the facts was enough to exonerate them. It is worthwhile to note that the film did not portray or reveal any private activities of Bobby Seale that were not already in the public domain.
So, it seems that as long as you make a movie that is substantially accurate with respect to the facts of the individual’s life whom you are portraying, you can get away with utilizing the same artistic license that the creators of The Social Network made use of. This is likely why Mr. Zuckerberg did not sue the film’s producers despite the fact that he did not agree with his portrayal as a nerdy social recluse who created Facebook to make friends and become “popular”. This reason alone would likely not be enough to win a lawsuit since the writers of The Social Network used care to write a script that was substantially accurate with respect to the historical events that were portrayed.
Rights of Publicity
The Right of Publicity is both a statutory and a common law right to limit the public use of one’s name, likeness and/or identity, particularly for commercial purposes. As opposed to the Right of Privacy, the Right of Publicity survives death. The applicable law is based on the person’s domicile when living, or where they were domiciled on the date of death.
The leading U.S. case on the issue of the Right of Publicity is Ruffin-Steinback v. Depasse 82 F.Supp.2d 723 (2000). The facts of Ruffin-Steinback involved NBC airing a four-hour mini-series depicting the musical group the Temptations as recounted in a novel written by Otis Williams, a founding member of the legendary recording group. No one other than Williams gave permission to the producers of the mini-series and so the other members of the group sued the producers. On appeal, the court ruled that the term ‘likeness’ (as relating to the Right of Publicity) does not include general incidents from a person’s life, especially when fictionalized. The narrative of an individual’s life, standing alone, lacks the value of a name or likeness that the tort requires. The court specifically held that:
“We agree with the district court that assuming each of the inaccuracies described in plaintiffs’ complaints and submissions is inaccurate in the manner described by plaintiffs, defendants’ actions in producing the story written by Otis Williams about the Temptations cannot be considered so extreme in degree as to go beyond all bounds of decency. The district court did not err in granting summary judgment on these claims.”
The court in essence upheld the earlier ruling that depicting one’s life-story without his or her permission does not constitute a violation of the Right of Publicity, barring any depictions that are “so extreme in degree as to go beyond all bounds of decency”.
The tort of defamation involves the publication of anything false which is injurious to the reputation of another or which tends to bring them disrepute. As a filmmaker you should avoid doing this unless you can confidently claim one of the defenses set forth below.
If you are offering your film as truthful, you want to have “double sourcing” on everything. Double sourcing simply means that you have two separate and independent sources for each factual assertion in your script. This is especially important for anything that might offend anyone, but especially the subject of the remark or representation. The second source should be truly independent of the first source. For instance, two different newspaper articles written from the same press conference or press release is not really a double source. The same fact verified by a second person not at the press conference would be a double source.
There are a number of common defenses to a suit for defamation. However, none of them is as good as never getting sued in the first place. Be extra careful when you make statements about individuals who are living and identifiable. The defenses to a defamation claim are:
Truth: This is the classic defense. Everybody seems to know that truth is a defense. Even if a statement is not completely true, you should win with a public figure if you have checked the facts out and you have a reasonable basis for believing they are true. Unfortunately for you, reasonable people may differ on what amounts to a reasonable basis for believing anything. Check the facts carefully. Double source any dubious or inflammatory claims.
Opinion: Everybody has a right to his or her opinion. If you are stating an opinion, make it very clear that it is an opinion. “Jack is a thief” is libelous. “I don’t like Jack’s performance” is an opinion. This can be tricky. The courts don’t let you off the hook with merely a perfunctory statement such as “It is my opinion that . . .” and then go on with a string of libelous statements. It must be clear to the reasonable listener that the statement is an opinion, not a fact.
Humor/Parody/Satire: Humor is a defense because, if everyone hears a comment as a joke, you have not damaged the reputation of whatever or whoever is the butt of your joke. However, there is a big difference between something that draws laughs or chuckles from most listeners and something that insults someone. Be careful of the latter.
It is likely that the makers of The Social Network utilized the double-sourcing method when finding the facts used to base the film’s script on. Regardless, they evidently did not include any events or statements in the movie that could give rise to a defamation claim and it is safe to say that it was by no accident. When you produce your docudrama you should use extra care not to utilize your artistic license so far as to portray inaccurate events or statements that could be injurious to the reputation of the film’s subject or which tends to bring them into disrepute.
Can You Use The Name Of Your Film’s Subject In The Title Of The Project?
So far we have discussed what to do or not to do with regards to creating the content of your film, but what about the film’s title? Can you use your film’s subject’s name in the film’s title?
Let us look at another well-known U.S. case. The case of Rogers v. Grimaldi, 875 F.2d 994, involved a lawsuit started by Ginger Rogers over the use of the title “Ginger and Fred” for a fictional movie that only obliquely relates to Rogers and Astaire. Rogers argued that the defendants violated the Lanham Act by creating the false impression that the film was about her or that she sponsored, endorsed, or was otherwise involved in the film, violated her common law right of publicity, and defamed her and violated her right to privacy by depicting her in a false light.
The court ruled:
Many titles, however, include a well-known name without any overt indication of authorship or endorsement–for example, the hit song “Bette Davis Eyes,” and the recent film “Come Back to the Five and Dime, Jimmy Dean, Jimmy Dean.” To some people, these titles might implicitly suggest that the named celebrity had endorsed the work or had a role in producing it. Even if that suggestion is false, the title is artistically relevant to the work. In these circumstances, the slight risk that such use of a celebrity’s name might implicitly suggest endorsement or sponsorship to some people is outweighed by the danger of restricting artistic expression, and the Lanham Act is not applicable.
Titles, like the artistic works they identify, are of a hybrid nature, combining artistic expression and commercial promotion. The title of a movie may be both an integral element of the film-maker’s expression as well as a significant means of marketing the film to the public. The artistic and commercial elements of titles are inextricably intertwined. Film-makers and authors frequently rely on word-play, ambiguity, irony, and allusion in titling their works. Furthermore, their interest in freedom of artistic expression is shared by their audience. The subtleties of a title can enrich a reader’s or a viewer’s understanding of a work. Consumers of artistic works thus have a dual interest: They have an interest in not being misled and they also have an interest in enjoying the results of the author’s freedom of expression. For all these reasons, the expressive element of titles requires more protection than the labeling of ordinary commercial products.
The title “Ginger and Fred” contains no explicit indication that Rogers endorsed the film or had a role in producing it.
Moreover, the title has an ironic meaning that is relevant to the film’s content. As Fellini explains in an affidavit, Rogers and Astaire are to him “a glamorous and care-free symbol of what American cinema represented during the harsh times which Italy experienced in the 1930s and 1940s.” In the film, he contrasts this elegance and class to the gaudiness and banality of contemporary television, which he satirizes. In this sense, the title is not misleading; on the contrary, it is an integral element of the film and the film-maker’s artistic expressions.
The court then summarized as follows:
In sum, we hold that section 43(a) of the Lanham Act does not bar a minimally relevant use of a celebrity’s name in the title of an artistic work where the title does not explicitly denote authorship, sponsorship, or endorsement by the celebrity or explicitly mislead as to content. Similarly, we conclude that Oregon law on the right of publicity, as interpreted by New York, would not bar the use of a celebrity’s name in a movie title unless the title was “wholly unrelated” to the movie or was “simply a disguised commercial advertisement for the sale of goods or services.” Under these standards, summary judgment was properly entered on the undisputed facts of this case, rejecting the Lanham Act and right of publicity claims, as well as the claim for false-light defamation.
Based on this decision, using a celebrity’s name in a film title may be permitted as long as the use of the said celebrity’s name does not explicitly indicate that the celebrity wrote, sponsored or endorsed the film, or does not explicitly mislead the viewer as to the content of the film. In the case of The Social Network, the creators did not use Mark Zuckerberg’s in the title of the movie. This may have been for artistic reasons, or the creators may have been concerned that the use of his name in the title could denote his sponsorship or endorsement, and thus could have given rise to a lawsuit.
If You Do Not Need The Permission Of The Celebrity Subject Of Your Film, Why Bother Getting Permission?
All of the above does not prevent you from seeking permission and co-operation from the celebrity subject of your film for business reasons. For example, with permission, you will also likely get co-operation and possible endorsement from that celebrity that will benefit the financial success of the Project. In turn, however, the celebrity may ask for financial participation and creative control that you may be reluctant to hand over.
Additionally, while we have canvassed a number of situations in which you do not need to get a celebrity’s permission to make a docudrama about them, the fact is that you could still get sued. Whether the claimant in the lawsuit would be successful or not would depend on how careful you were during the making of the movie to avoid the legal issues described above. But the fact is, most people do not want to spend considerable amounts of time and cost defending a lawsuit. If you can get the celebrity’s permission, then you will have the security of not having to worry about them suing you.
Of course, one of the purposes of E&O insurance is to protect and indemnify you if you end up getting sued by the celebrity subject of your film. You may think that with E&O insurance in place, you do not have to worry about being sued since your insurer will cover the costs. But what you may not know is that a possible result of not getting permission from a celebrity to do a docudrama could be a much higher E&O deductible for cases where the individual or estate of the individual decides to start a lawsuit. In some cases your deductible could jump from around $10,000 to as high as $250,000 for that one item. For many filmmakers, having to pay a quarter million dollar deductible would be disastrous. So, in order to protect yourself and your project when making a docudrama about a celebrity, getting his or her permission may still be the best choice, even if you are careful not to avoid the legal issues relating to Rights of Privacy and Publicity, False Light and Defamation.
Image courtesy of Sony Pictures