BY:Neil J. Rosini, Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal on July 1, 2016)
Under the law of both New York and California – where most decisions concerning entertainment law are rendered — the stories of real people often can be used without authorization or payment, not only in biographies but also fictionalized films, books, and plays. A recent decision interpreting California law, Sarver v. Chartier, upheld that right on First Amendment grounds. New York cases, on the other hand, usually turn on strict interpretation of Sections 50 and 51 of the state Civil Rights Law and rarely reach the constitutional principle on which Sarver was based. They also can require some reconciling one with another.
Both Sarver and cases interpreting the New York statutes differentiate protected storytelling from commercial uses of identities such as in advertisements and on merchandise, which require permission from the persons depicted. Sarver warns that poaching a plaintiff’s “developed economic interest” falls outside First Amendment protection, and New York decisions include fictionalized biographies posing as fact within the unprotected commercial category.
Filmmakers, authors, playwrights and others who wish to populate their fictionalized worlds with real life characters and experiences, take note.
The Sarver Case
The plaintiff in the case, Sgt. Jeffrey S. Sarver, complained that the main character in the Oscar-winning film, The Hurt Locker, was based on his life and experiences as a United States Army explosive ordnance disposal technician in Iraq, without his consent. (He advanced other claims, too, such as that scenes in the film defamed him.) The story of Sarver’s life and experiences in Iraq was first told in “Playboy” magazine by Mark Boal, who embedded himself with Sarver’s company. Boal also wrote the screenplay of the film.
Sarver alleged that the main character, Will James, shared Sarver’s personal characteristics like his appearance and temperament and that events in the film mirrored those in his own life. The defendants successfully moved to dismiss under California’s “anti-SLAPP” statute, which was enacted to curb “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Sarver appealed from that dismissal.
The court observed that California’s right of publicity law prohibits use of a celebrity’s name, voice, signature, photograph, or likeness for commercial purposes without consent, and that a plaintiff needs to establish four elements: use of the plaintiff’s identity; appropriation of the plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; lack of consent; and resulting injury. Assuming that Sarver’s name or likeness appeared in the film “for the sake of argument,” the court held that the First Amendment’s free speech protections defeated Sarver’s claim, even if he could establish all four elements.
The court’s point of departure was that the law protecting the right of publicity “clearly restricts speech based upon its content” and thereby implicates First Amendment concerns. The court observed that the only U.S. Supreme Court decision to review the constitutionality of a state’s right of publicity law, Zacchini v. Scripps-Howard Broadcasting Co., concluded that applying it to a broadcast of the entire performance of a human cannonball did not violate the First Amendment. But there, the law was aimed at protecting “the proprietary interest of the individual in his act” and “prevent[ing] unjust enrichment by the theft of good will” in order to provide “an economic incentive for [the individual] to make the investment required to produce a performance of interest to the public.” The broadcast effectively prevented the plaintiff from charging a fee to view “the product of [his] own talents and energy, the end result of much time, effort, and expense.” Under those circumstances, the state of Ohio’s protection of the plaintiff’s right of publicity did not offend the First Amendment.
The Sarver decision also cited a Ninth Circuit decision won by Paris Hilton who successfully sued Hallmark for using her image and catch phrase (“that’s hot”) in one of its greeting cards, on the basis that “merely merchandising a celebrity’s image without that person’s consent” has no First Amendment protection. In another cited case, a college football player successfully prevented use of his likeness in a video game because it “interfere[d] with his ability ‘to capitalize on his athletic success,’ which took ‘talent and years of hard work on the football field’ to build.” Other Ninth Circuit decisions cited in Sarver held that use of celebrities’ images in commercial advertising was not protected by the First Amendment because they attempted “to take a free ride on a celebrity’s celebrity value.” Accordingly, “speech which either appropriates the economic value of a performance or persona or seeks to capitalize off a celebrity’s image in commercial advertisements is unprotected by the First Amendment against a California right-of-publicity claim.”
The court distinguished Sarver’s claim from those decisions on several grounds. First, The Hurt Locker was not “speech proposing a commercial transaction” so that cases applying lesser protection to commercial speech did not apply. Secondly, Sarver did not “make the investment required to produce a performance of interest to the public” or “invest time and money to build up economic value in a marketable performance or identity.” In fact, Sarver’s status as a “private person who lived his life and worked his job” — without attracting public attention to himself – worked against him. He had not developed any “performance or persona” to protect and the state had no interest in giving him “an economic incentive to live his life as he otherwise would.”
In sum, the court held that the film constituted “speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art” whether in articles, books, movies or plays. If applied to the film, California’s right of publicity law would be a “content-based speech restriction” that is “presumptively unconstitutional” in the absence of a “compelling state interest in preventing the defendants’ speech.” Sarver’s right of publicity claim failed because there was no such compelling interest.
The analysis in Sarver (though not the result) contrasts with most New York cases addressing the use of real identities in fiction. In New York, claims brought by plaintiffs who object to their portrayal in fictional works almost always are viewed through the prism of Sections 50 and 51 of the Civil Rights Law, which provide the only basis for a right of publicity or privacy claim in the state. These cases turn on interpretation of Section 51, which forbids use of a living person’s “name, portrait, picture or voice … for advertising purposes or for the purposes of trade” without written consent (the person must be living because New York does not recognize a post-mortem descendible right). But the statute does not define “advertising purposes” or “purposes of trade,” and parsing those phrases has not led courts in New York to the relatively clear distinction made in Sarver between First Amendment-protected storytelling and violation of publicity rights.
This is not to say that New York cases don’t tend to lean in the direction of storytellers. Decisions interpreting Sections 50 and 51 have established clearly that stories about newsworthy events and matters of public interest are not violations, “reflect[ing] Federal and State constitutional concerns for free dissemination of news and other matters of interest.” And some apply the same newsworthiness exception to fictionalization of true events. Moreover, where the statute says “name” most decisions say it means first and last name; plaintiffs have gone home empty-handed because their actual first and last names weren’t used even though other details of their lives and experiences were adopted. Creators of fictionalized or purely imaginary films like French Connection, John Goldfarb Won’t You Please Come Home, Dog Day Afternoon, The Wolf of Wall Street, A Bell for Adano,  the television series Seinfeld  and the play Six Degrees of Separation won with this defense (sometimes among others). This aligns with the principle that a use in violation of the statute must unequivocally identify the plaintiff; creators are given allowance for “pure coincidence, since there always will be persons with similar names.”
A number of decisions stand for the related proposition that portrayals do not amount to “trade” or “advertising” forbidden by the statute when real persons are “designated fictitiously,” such as with partially or entirely fictional names or a disclaimer of actual persons and events. But use in fiction of identifiable real people with their complete names attached — unless “fleeting and incidental” (another exception to Sections 50 and 51) — doesn’t always go as well for defendants. Perhaps the best-known example occurred in the context of a book. The plaintiff was baseball star, Warren Spahn, who sued the publisher of a purportedly true and ultra-complimentary biography that the New York Court of Appeals later described as “so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception.” Rather, the purpose of that kind of use is “trade,” which violates Section 51 of the Civil Rights Law, and the First Amendment has “no application.”
Arguably, however, the Court of Appeals was more offended by the commercial intent behind the faux biography than it would have been had Spahn appeared in an outright novel — an interpretation that would reconcile Spahn with other decisions; the court observed that just because Spahn was a “public personality … substantially without a right to privacy” insofar as his public career was concerned, that did not give the defendants license to fictionalize that “personality” and exploit it “for the defendants’ commercial benefit through the medium of an unauthorized biography.”
This was the gloss given Spahn in 1978 by the Southern District of New York in Hicks v Casablanca Records, a case brought by the heir and assignees of then-deceased Agatha Christie, writer of murder mysteries. They objected to Christie’s unauthorized portrayal “as an emotionally unstable woman, who, during [an] eleven-day disappearance, engages in a sinister plot to murder her husband’s mistress” in a totally fictional book and film named Agatha. The court’s analysis of New York law distinguished Spahn because “there were no deliberate falsifications” in this case and because in both the novel and film, “it is evident to the public that the events so depicted are fictitious.”
The Hicks decision was notable also for stepping outside the box of Sections 50 and 51 and, like Sarver, reaching a result favoring defendants on First Amendment grounds. After deciding that Sections 50 and 51 would not condone the defendants’ “conjecture, surmise, and fiction” — which could not be equated with a protected biography — the court stated a principle sounding much like Sarver: “unless there appears to be some countervailing legal or policy reason, courts have found the exercise of the right of speech to be protected” and in this case, there were no such countervailing reasons.
Sarver and Hicks present relatively straightforward guidelines based on First Amendment principles for deciding whether fictional works portraying real people violate publicity rights. New York decisions, however, usually apply statutory interpretation that seems to depend — most of the time — on whether readers and viewers know what they’re reading or watching is fiction or fact.
 813 F.3d 891 (9TH Cir., 2016).
 The defamation claim was dismissed because even if certain aspects of the character were “unflattering,” the film’s overall depiction could not reasonably be seen to defame Sarver.
 Cal. Civ. Proc. Code Section 425.16. “SLAPP” stands for “Strategic Lawsuit Against Public Participation.”
 More than half of the court’s decision addressed issues of choice of law and whether the anti-SLAPP motion was timely filed. (California law won out over New Jersey law and the motion was held to be timely.) As a foundation for the anti-SLAPP motion, the court also determined that Sarver’s claims involved a matter of public concern even as his personal characteristics were “inherently entwined with the film’s alleged portrayal of his participation in the Iraq War.”
 433 U.S. 562 (1977).
 Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010).
 Keller v. Electronic Arts, Inc., 724 F.3d 1268 (9th Cir. 2013);
 Stephano v. News Group Publications, 64 N.Y.2d 174, 184 (1984).
 See, Wojtowicz v. Delacorte Press, 58 A.D.2d 45 (1st Dep’t, 1977), aff’d 43 N.Y.2d 858 (1978); Toscani v. Hersey, 271 A.D. 445 (1st Dep’t, 1946); Waters v. Moore, 70 Misc.2d 372 (Sup. Ct. Nassau Co., 1972).
 Waters, supra.
 University of Notre Dame v. Twentieth Century-Fox Film Corp., 22 A.D.2d 452 (1st Dep’t, 1965), aff’d, 15 N.Y.2d 940 (1965)
 Wojtowicz, supra.
 Greene v. Paramount Pictures Corp., 138 F.Supp.3d 226 (E.D.N.Y. 2015).
 Toscani, supra.
 Costanza v. Seinfeld, 279 A.D.2d 255 (1st Dep’t, 2001).
 Hampton v. Guare, 195 A.D.2d 366 (1st Dep’t, 1993).
 People on Complaint of Maggio v. Charles Scribner’s Sons, 205 Misc. 818 (Mag. Ct., Bklyn, 1954).
 See, e.g., Costanza, University of Notre Dame, Waters, Wojtowicz, Toscani, Hampton, supra.
 University of Notre Dame, supra.
 Geisler v. Petrocelli, 616 F.2d 636 (2d Cir., 1980); Marcinkus v. NAL Publishing, 138 Misc.2d 256 (Sup. Ct. N.Y. Co., 1987). Both these cases used the plaintiffs’ names in a plainly libelous context, which can expose defendants to risk notwithstanding a label of fiction.
 Spahn v. Julian Messner, Inc., 18 N.Y.2d 324 (1966), vacated 387 U.S. 239, adhered to on remand and rearg, 21 N.Y.2d 124 (1967).
 Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d 436 (2000), distinguishing Spahn.
 18 N.Y.2d at 329.
 18 N.Y.2d at 328.
 464 F. Supp. 426 (S.D.N.Y, 1978).
 See also, Waters, supra, which distinguishes Spahn on the bases that “’The French Connection’ identifies itself as ‘fictitious’, albeit based on an actual event, does not purport to be a biography, and does not use the plaintiff’s name.” 70 Misc. 2d at 375; and Frosch v. Grosset & Dunlap, 75 A.D.2d 768 (1st Dep’t, 1980), which endorses fictional biographies.