The Crown, Inventing Anna, Pam & Tommy, House of Gucci – these and many other biopics were made (for the most part) without the involvement or consent of the real-life subjects depicted or referenced. How is that possible?
In this article, Emily Cox explores some examples of controversial biopics and provide tips for how a high profile individual can respond when a third party wants to create content based on their life without their consent.
Life story rights
The right to portray parts of someone’s life in media or ‘content’ – film, television or writing – is sometimes referred to as life story rights. There is however no such ‘right’ legally recognised in England and Wales, or in the USA.
No individual holds the legal ‘right’ to the story of their life. As long as the information about a person was obtained lawfully, others are free to make content about them and profit from it without seeking consent. That said, ‘buying’ consent and releases from the subject can protect from other legal risks, and result in a better published story given the enhanced access to information from the subject.
Former Vanity Fair photo editor Rachel DeLoache Williams recently sued Netflix based on her portrayal in their drama series Inventing Anna. The defamation lawsuit claims that the TV show depicted her as “a greedy, snobbish, disloyal, dishonest, cowardly, manipulative and opportunistic person. As a result of Netflix’s false portrayal of her as a vile and contemptible person, Williams was subjected to a torrent of online abuse, negative in-person interactions, and pejorative characterisations in podcasts, etc.”
The lawsuit points out that while many of the characters in the TV show had their names changed from their real life counterparts, this was not done for Williams.
Inventing Anna is far from the only biopic which has drawn controversy in recent years – the trend has only increased along with the rise of streaming services and TV dramas based on real life events.
Pam & Tommy
Pamela Anderson has said that she will “never, never watch” Disney+ drama Pam & Tommy, made without her permission, and she has since made an agreement with Netflix to produce her own biographical documentary.
Regardless of the lack of a legal ‘life story right’, Pam & Tommy does not claim to be based on the actress’ life, but on a 2014 Rolling Stone article that detailed how Pamela Anderson and Tommy Lee’s sex tape was stolen and then released. The producers optioned the rights to the article and Pam & Tommy’s showrunner declared that “the basic plot beats are all straight from the article.”
On that basis, Pamela Anderson’s consent was not required, nor was she paid anything, despite the limited series being a fictionalised version of aspects of her life. Because the series dramatizes a serious breach of privacy and lack of consent, the decision to go through with the series without her approval was controversial nonetheless.
The Queen’s Gambit
Blurred lines between fact and fiction can lead to litigation in some instances. Georgian chess Grandmaster Nona Gaprindashvili has sued Netflix for $5 million in response to a fictional chess commentator’s line in the series finale of fictional drama The Queen’s Gambit. The line refers to her by name and says she is “the female world champion and has never faced men.” The Queen’s Gambit is based on a 1983 novel by Walter Tevi, but references real chess players including Gaprindashvili. The basis of her defamation claim is that the statement is false and degrades her accomplishments.
Earlier this year, a US judge refused to strike out the claim and it may now proceed. Netflix had argued that it could not be sued for defamation of real people depicted in works of fiction. The judge disagreed, and said that because Gaprindashvili is mentioned by name in a series that references other real people and events, viewers might believe the comment was a historical detail.
Netflix also argued that the comment was not defamatory because viewers might not consider “has never faced men” to be a disparaging comment. The judge again disagreed and said that the statement is dismissive of Gaprindashvili’s accomplishments, which could constitute an injury to her reputation that could damage her career.
Unlike in England and Wales, ‘malice’ is a necessary element for defamation in the USA. The judge found that there was a reasonable basis to Gaprindashvili’s claim because the showrunners altered the concluding line from the novel, which could be interpreted as a malicious action.
Gaprindashvili’s lawsuit was settled in September 2022, a year after it was filed. The settlement details remain confidential, though both parties declared in statements that they are “pleased the matter is resolved”. Netflix’s decision to settle demonstrates that despite the lack of a ‘life story rights’ law, individuals do have power in cases where their lives have portrayed in a potentially unfavourable light.
Legal recourse for high profile individuals
With all this in mind, how can individuals protect themselves from unfavourable depiction of their lives in biopics or biographies?
An individual may consider bringing a defamation claim if a television show, film or book makes false or injurious claims about them and the person or organisation that has produced it does not seek the individual’s consent before release. Thinking strategically, a production house may be put off releasing a show or film by the potential costs of litigation, the delays that might arise from it or the negative optics of a dispute.
One caveat is that the dead cannot be defamed, so an individual’s estate cannot bring a defamation claim. Baz Luhrmann’s Elvis movie will not legally have needed Priscilla and Lisa-Marie Presley’s endorsements, even if their involvement was beneficial from a PR perspective.
A misuse of private information claim may be possible if a piece of media includes information that is factually correct, but not in the public domain. Such claims involve a balancing act between Article 8 of the European Court of Human Rights right to respect for private and family life, and the Article 10 right to freedom of expression. Any legal action would be subject to close scrutiny and misuse of private information may be harder to establish depending on how well known the individual is. Media producers can argue that celebrities and public figures cannot expect to maintain the same level of privacy as others, and that there is a legitimate public interest in that aspect of the story being told.
Gaining the intellectual property (IP) rights over your name or something associated with you by applying for a trademark can be very useful. Anyone wanting to then use that trademark in commercially produced content would have to apply for a license to do so. If they use your trademark without your permission, there are several remedies that a successful claim for infringement can result in, including damages and an injunction. Here too, the individual’s profile and public knowledge about them may impact the result.
While it may seem unfair that someone you have never met can profit from facts of your life as part of ‘entertainment’, high profile individuals have options to counter this. If you are proactive about protecting your rights you can make it difficult for people to exploit them and put them off attempting to do so.
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