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February 3, 2023 | Entertainment

Separating Fact From Fiction: Legal Considerations In Historical Dramas

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Author(s)
Olivia Loftin

Associate Attorney

Ellie Sanders

Graduate Law Clerk

According to the well-known saying, every story has already been told.  This is especially the case in historical dramas, which are retellings of true events that add fictionalized elements for dramatic effect.  In other words, historical dramas are a hybrid of fact and fiction.  Recently, a wave of historical dramas garnered awards nominations, including “The Crown,” “Monster: The Jeffrey Dahmer Story,” and “Blonde.”  In blending fact and fiction, the ‘fiction’ aspect tends to open a historical drama to liability.  An experienced entertainment attorney can help guide writers and producers of a historical drama and protect their projects from liability.

What type of legal risks arise when creating a historical drama?

Right of Publicity

The right of publicity is the right of an individual to control the commercial use of his or her name, image, likeness, or other similar aspects of the individual’s identity.  In the U.S., the right of publicity is a right based in state law (rather than federal law).  About half of the states in the U.S. recognize a right to publicity, including New York.  An issue may arise here in the context of a historical drama if your project depicts real people.  If such a dispute would go before a court, the court would balance the First Amendment protections of free speech for the project’s writer or producer against the depicted person’s right of publicity.  Courts are hesitant to limit freedom of expression through publicity rights, which is good news for writers and producers of historical dramas.  For example, when Olivia de Havilland sued FX for invasion of her right of publicity over her portrayal in the television series “Feud,” the California Court of Appeals ruled for FX, holding that the First Amendment protected the series’ creators.

Defamation

Defamation claims are based on the facts and circumstances surrounding a published false statement of fact.  Defamation is a very fact-specific claim.  Not all statements made, even some that harm another person’s reputation, constitute defamation.   If the defendant’s statement is true or is expressing an opinion, there is no defamation.  Note also that if your historical drama depicts a deceased person, their estate cannot bring a defamation claim on their behalf.  While varying by jurisdiction, the elements of a typical defamation claim are: (1) a false statement which may injure reputation, (2) about or concerning a plaintiff, (3) with the requisite culpability.  The culpability element depends on whether the subject of the claim is a public figure.  In the case of a historical drama, the person depicted tends to be a public figure, so the statement must be made with “actual malice” or “reckless disregard.”  For example, former prosecutor Linda Fairstein sued Netflix for defamation over her portrayal in the historical drama “When They See Us,” the series about the Central Park Five case.  In August 2022, the Southern District of New York Judge Castel explained that because an average viewer could conclude that the scenes have a basis in fact and are not just reflections of the writer’s opinions, the defamation claim could be pursued.  There are many other instances where historical dramas were the subject of defamation suits, including “The Queen’s Gambit,” “Inventing Anna” and “The Wolf of Wall Street.”

How can I protect my historical drama?

The First Amendment

The First Amendment, guaranteeing freedom of speech, is the basis for many protections relating to historical dramas.  The First Amendment offers broad protections for expressive works like film and television projects that depict real people by their real names.  Criticism of public officials and comment upon public issues is protected under the First Amendment.  Thus, a writer or producer of a historical drama can reference their constitutional rights under the First Amendment to provide a shield against some liability.

Rights Clearance

Rights clearance is a preventive process intended to minimize potential lawsuits by proactively reviewing a historical drama, or other entertainment project, to ensure no third party’s rights are being impacted.  The clearance review process should be done by an entertainment attorney, and for historical dramas the procedure will have a specific focus on the following elements:

  • Characters: An attorney should confirm that any characters in the historical project are either fictional or composite (and do not resemble any real person, living or dead, whose rights may be affected), or real (in which case, should include a review of which rights, if any, would give rise to claims).
  • Dialogue: An attorney should opine on whether the dialogue is accurate, probably accurate, or fictional. If the dialogue is probably inaccurate, the attorney should outline the risks of claims arising from its inclusion in the project.
  • Scenes: Similar to the dialogue analysis, an attorney should review scenes with an eye on what types of claims could arise from the fictional or inaccurate storytelling.

Disclaimers

Typically, a historical drama will use a disclaimer such as “based on real events” or “inspired by a true story” in the opening credit.  These disclaimers are best when they describe in detail what has been fictionalized.  Why?  Disclaimers are used to inform viewers that some artistic license has been taken with the facts.  Ultimately, disclaimers should be regarded as a supplemental protection, in addition to the protections that rights clearance affords, but they will not be an ironclad defense against liability.

Conclusion

Before you begin writing or producing a historical drama, consult an experienced attorney who can help review and identify the specific risks associated with your project.  Contact a member of our team for more information.

Contributions to this blog by Angie Lauters.

Photo by Birmingham Museums Trust on Unsplash
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