Q: I’m making a series of humorous short films about the dot com bubble days. One of the characters is named Gill Bates in a not-so-subtle dig at you know who. We’re pretty hard on him in a humorous way. Do I need to worry about defamation or name and likeness issues with this or any other “based on real life” characters we may use?
A: I like where you went with this. It’s pretty impressive that you took one of America’s most beloved nerds and, through a simple switcheroo of letters, made him sound even nerdier with a name like “Gill.” Then you creeped it up with a last name like “Bates.” Which is perfect because I’m pretty sure Bill Gates sits up in his room wearing his mother’s wig arguing with himself about whether he should be allowed to invite Steve Jobs in for supper.
Did you see what I did right there? I not only made a half-hearted attempt at a movie-themed joke, I also demonstrated my lack of fear about telling the world that a public figure dresses up like his mother and converses with himself, knowing it’s probably not true. Is the source of this fearlessness my unbridled confidence that my good looks can get me out of any bind? Most likely. (I’m still very excited about our new profile pictures.) However, I also derive comfort from South Park’s favorite constitutional protection: the First Amendment.
Now we all know about the First Amendment (unlike its redheaded stepbrother the Third Amendment — which bans the forced quartering of soldiers). Unfortunately, many people don’t truly understand it. After Dr. Laura caught flack for acting like she was Quentin Tarantino inPulp Fiction over the air, she complained that she had to get out of radio to get her First Amendment rights back. Not surprisingly, Dr. Laura doesn’t know what she’s talking about. She was perfectly free to say what she said. The government didn’t intervene. No one could have successfully won a lawsuit against her. She simply stuck her foot between those chicken lips of hers and suffered economic consequences as a result. Her First Amendment rights were always in tact; unfortunately for her, so are the First Amendment rights of those who have threatened to boycott any advertisers who stick with her show.
However, our First Amendment rights are not absolute. You have validly raised concerns about defamation and right of publicity issues, which are both examples of claims that can be brought against you based on what you say. Defamation is the publishing to a third party (whether verbally or in writing) of a purported statement of fact that is not true that hurts someone else’s reputation. Someone’s right of publicity disallows a third party from using that person’s name or likeness for a commercial purpose without permission.
The good news for you is that you have several factors working in your favor. The first is that you can ignore the right of publicity issue. As we’ve noted before, courts have held that films are akin to artistic works, not commercial works (insert my standard big Hollywood blockbuster joke here), so the use of someone’s name and likeness (or humorous versions thereof) in your film shouldn’t be an issue. It may be a different story if you were using the character in a commercial. The second is that, with respect to defamation, there is a very high standard for what constitutes defamation when you’re dealing with a public figure like Mr. Gates (I’m going to be respectful after my initial crack on him in case his foundation wants to fund a certain blog that’s helping change the world). For you to be guilty of defamation, Mr. Gates would have to prove that you defamed him with “actual malice.” I’m not talking about scary awesome Alec Baldwin malice; I’m talking about making what could be construed as a statement of fact about Mr. Gates knowing it is false (or acting in reckless disregard for the truth). Because of this high standard, tabloids can get away with printing outrageous stories that may be false by basing such stories on some arguably credible source (like a celebrity’s nanny’s sister).
All of this is likely irrelevant anyway because of the fact that parody is one of the First Amendment’s favorite children and has a tremendously broad scope of protection. Courts are very reluctant to squash any speech considered parody. Besides, by jokingly referring to your character as Gill Bates and involving him in humorous scenarios, you’re making it impossible for Mr. Gates to argue that anything you imply about him in your film would be taken as a purported statement of fact by the public, and, thus, it would be almost impossible for him to prevail on a defamation claim. Therefore, you should feel free to include your Gill Bates character. I just hope for your sake that Mr. Gates hasn’t gotten any ideas about how to getretribution against those who cross him.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.