Chris L. Perez

Partner, Donaldson Callif Perez, LLP

Haley Mark

Law Clerk, Callif Perez, LLP

We all love them. From The Social Network, to The Wolf of Wall Street, to Argo, there's nothing better than a film that is too good to be true - except that it is true, according to the people that made them. How are programs that depict true stories or claim they are "a true story," "based on a true story," or "inspired by a true story" legal? How can people protect themselves when they become the subjects of one?

In recent years countless programs have been marketed as being based on or inspired by true events. Most of these programs endure a rigorous rights clearance process to ensure that the program does not defame, libel, or otherwise violate the rights of any individual from whom the filmmakers did not secure permission to portray in the film. For example, my firm recently conducted a rights clearance review of BlackBerry, a film based on the true story of the rise and fall of the world's first smartphone.

The case law is clear that programs based on a true story - even those that engage in dramatic fictionalization - are given strong protection under the First Amendment. Courts have recognized that "docudramas," or programs that dramatize real events and convey them as true or mostly true, may rely on dramatic interpretations of real events to be entertaining (Partington v. Bugliosi, 56 F. 3d 1147 (9th Cir. 1995)). However, potentially damaging information contained within the program needs to be communicated to viewers about what is and is not true, so such statements are not found to be defamatory. Defamation generally occurs when a published, false statement of fact causes damage to a third party's reputation (Thomas J. McCarthy & Roger E. Schechter, The Rights of Publicity and Privacy § 5.107 (2d ed. 2023)). To state a valid claim, the statement must be clearly "of and concerning" the third party (Greene v. Paramount Pictures Corp., 813 Fed.Appx. 728 (2nd Cir. 2020)). If the third party is a public figure or celebrity, they are given less protection and must prove that the defamatory statement was made with "actual malice"--that the person who made the defamatory statement knew it was false or acted with reckless disregard as to whether or not it was true (Id. § 5.109). However, if the third party is a private figure, they are given more protection and must only prove that the defamatory statement was made negligently, meaning that the person who made the statement failed to act reasonably in determining its truth or falsity.

It would make sense, then, that the first question a practitioner might investigate is whether a character in a program is "of and concerning" a real, living individual. If the answer is no, the defamation analysis ends, and the creator has much more freedom to design the character. If the answer is yes, then any statement that may be considered a statement of fact about the real individual must be analyzed to determine whether all other elements of defamation are satisfied. Statements may fall short of a viable defamation claim for a variety of reasons. For example, a statement of fact may be corroborated by reliable evidence, as truth is a complete defense to defamation. Or perhaps the statement is false or misleading, but it does not damage the individual's reputation or character.

Also crucial to the defamation analysis is the extent to which fictionalization in the program is clearly communicated to the viewer. While disclaimers are never dispositive markers for determining the viability of a defamation or libel claim, a program's claim that it is a "true story" versus being "based on" or "inspired by" a true story can have an impact on whether a program is viewed as defamatory or not. Recent cases suggest that courts are taking a closer look at disclaimers to help them decide whether reasonable viewers would think that a film is making statements of fact. For example, the court in Mossack Fonseca & Co. v. Netflix Inc., No. CV 19-9330-CBM-AS(x), 2020 U.S. Dist. LEXIS 250113, *10 (C.D. Cal. Dec. 23, 2020), found that "no reasonable viewer of the Film, [which depicted a law firm that represented clients involved in illegal activities], would interpret the Film as conveying 'assertions of objective fact,' particularly given the statement at the beginning of the Film 'BASED ON ACTUAL SECRETS' which sets the stage and the disclaimer at the end of the Film that states the Film is fictionalized for dramatization and is not intended to reflect any actual person or history."  

While the practitioner's pre-publication rights review of a film, along with an errors and omissions insurance policy that covers producers and distributors of films from defamation, libel and privacy claims, offer protection for those releasing films to the public, what protections exist for real individuals? What happens when a program that is "of and concerning" a real individual passes a clearance analysis and is not itself defamatory, but where internet sleuths make speculative (or, in some cases, definitive) statements identifying popular film and television characters as real individuals?

The fact that a statement is made online does not, in and of itself, insulate the person posting it from liability. While the Communications Decency Act protects internet service providers against lawsuits caused by users' posts, potential claims against someone who makes a defamatory post may include defamation, online harassment, invasion of privacy, and infliction of emotional distress.

However, amidst the endless cloud of online chatter, courts have had to consider whether certain statements made online are to be considered potentially defamatory "statements of fact" versus non-actionable opinions or mere hyperbole. Recently, in Cedeno v. Upchurch, No. 3:23-cv-876, 2024 U.S. Dist. (M.D. Tenn. 2024), Melvin Cedeno, a YouTube creator known as Ickedmel, sued another YouTube creator and internet sleuth, Ryan Upchurch, for making videos accusing Cedeno of engaging in sex-trafficking and pedophilia. The court found that Cedeno sufficiently alleged defamation and intentional infliction of emotional distress, so the case is proceeding. Cedeno may be able to recover damages if Upchurch's claims are found to be false. Yet, in Unsworth v. Musk, No. 2:18-cv-08048-SVW-JC, 2019 U.S. Dist. LEXIS 229024, *4 (C.D. Cal. Nov. 27, 2019), the court found that it was up to the jury to decide whether Elon Musk's tweets calling a British caver who helped in the rescue of Thai school children a "pedo guy" were statements of fact. The jury found that they were not statements of fact.

There may be more protection for defamed individuals in the near future. A California Assembly bill was introduced in February 2023 with the aim of requiring "social media platform[s] located in California [to] develop a policy or mechanism to address content or communications that constitute unprotected speech, including obscenity, incitement of imminent lawless action, and true threats, or that purport to state factual information that is demonstrably false." Although the bill ultimately died, another may take its place, allowing defamed individuals to hold social media platforms accountable for defamatory posts.

While the so-called "streaming wars," the exodus of production work from Hollywood, the rise of AI and guild and union strikes continue to rock the film and television industry, films "based on a true story" show no signs of slowing down. For those who act as the inspiration for characters on screen, the bar for recovering damages - at least for now - remains high.