An Interesting Defamation Question – Entertainment Law Asked & Answered
I've got a pretty interesting defamation question for you today…
Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.
A viewer wrote in with this question:
I've written a spec pilot set in a real and widely known American city in the 1950s. At one point an official of a real institution, which can't be fictionalized since there's only one institution of that kind in every city, accepts a bribe. I wonder whether that might cause problems.
This is a Great question. Unfortunately, it’s hard to give an opinion without reviewing the actual piece in question. But In principle, it COULD be a real issue.
This is a question mainly about the law of defamation. That's LIBEL, if it's in print, electronic form, etc, and Slander if it's a spoken conversation.
The elements for a case of defamation vary a little from State to State, but fundamentally, they are:
- A False Statement (So truth is always a defense)
- About the plaintiff;
- That is published, and;
- Causes plaintiff injury to reputation and standing in the community.
- And… When the plaintiff is a public figure, there's an added requirement… That the material was published with “Actual Malice”. Essentially, that the defendant KNEW it was false, or was RECKLESS about whether it was false.
OK, so this question, mainly turns on that second element… “about the plaintiff”
You see, if the character in your pilot and the real office-holder can’t be separated and distinguished from one another, then the statements *would* seem to be “about” that person. And if they're false and damaging, they'd amount to libel.
But if the character and the real person are radically different in other ways, so the average person that receives the message doesn't automatically conclude, “Oh, they're talking about so-and-so”, well then you might be OK.
For example, if it’s set in Los Angeles in 1955, and the story includes a corrupt police chief… It’d probably be wise to make the story’s police chief as different as possible from the real one, William Parker, so the audience doesn't think you’re attributing the wrongdoing to him.
Also, if the person in question is deceased, his or her rights to sue for defamation, invasion of privacy, etc., probably died with him/her. Again, this is something that can vary from State to State, but this many years later, chances are, there's no right to sue.
Bottom line, this calls for a true legal analysis performed by a lawyer hired to give a formal opinion. You could leave that up to the producer or the network.. But you may find that it's an easier pitch if you can give some assurances.
That does it for this session of Asked and Answered. If you have a question for me, just visit www.firemark.com/questions and let me know.
See you next time!
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