Q: I’m the producer of a film based on a memoir. The memoir was written by a relative of a family that has made a fortune producing a very famous product and then got into legal and mafia trouble. We’ve optioned the book but think it’s going to be difficult (if not impossible) to obtain life rights agreements from the other family members who will be portrayed in the film. We can base the film on the information in the book, court documents, and interviews between the author and the family members. So we can stick to the truth but of course it will need to be dramatized. Can you give some guidelines for the screenwriter who is going to adapt this book to minimize our exposure to defamation or libel lawsuits?
A: Generally, when dealing with projects involving mafia trouble, I advise first to obtain good life insurance from a reputable insurance company that covers mob hits made to appear like an accident or suicide. Once the policy is in place, say a few prayers or if you’re not religious find God quickly and then say a few prayers. These small details out of the way, you’re ready to start the game of legal Russian Roulette.
Sticking to the truth is typically boring, hard, uninteresting, and uncool. Nobody does it anymore. But all these downsides aside, truth is a pretty good defense to defamation — an absolute defense really. Naturally, truth is an elastic concept and is one of those in the eye of the beholder things, but in most cases, the beholder with the most money to waste on litigation is the one telling the truth. Plus, although a defense against defamation, truth doesn’t protect as well against an obese guy from New Jersey pointing a .357 snubby at your head while eating a sub.
Of course, defamation is not your only legal concern. By the way, libel is a form of defamation. Libel is defamation in writing. Slander, libel’s illiterate cousin, is verbal defamation. And while we’re all legal here, defamation is more than merely untruth. The untruth has to damage whoever claims defamation. For example, if you wrote or said that the writer of this blog is a handsome, well read, respected professional and father, you’d be lying, but no damages to reputation there. So go ahead. And if you said that yours truly has a drinking problem, is addicted to cock fighting, and has a modest, under control on medication kleptomania problem, you’d get a sincere, spontaneous, straight-from-the-heart denial from my publicist.
Anyway, back to your question, defamation is not the only tort you need to worry about. That’s right, this is supposed to be a legal blog, and to use it as a tax deduction (my primary motivation for writing it and for most I do, including having children), I need to use at least one legal term each time. In the next blog I plan on a soupçon of nunc pro tunc (not sure what it means either, but it’s intended to subtly and subconsciously impress you with my superior Ivy League education; as some of you who have been fortunate to meet me in person know, I always make a point of seamlessly working into a conversation a passing reference to my Ivy League schooling). So a tort, not to be (but often) confused with torte, is a fancy legal word for a wrongdoing that the law frowns upon.
In addition to defaming these good people, you need to look out for other torts in this area. One is public disclosure of private facts. If you learn a true private fact (as opposed to those false facts everyone loves) about someone and disclose it publicly, it’s not defamation because it’s true but it may be a tort (here I go again). For example, if I confided in you, whispering in absolute privacy under a blanket, about a certain embarrassing fact about me that my wife doesn’t know about (yet), and you made a movie about it, you’d be in legal trouble.
Another good one is false light. This is portraying someone falsely but not in a way that constitutes defamation. For example, if you start telling people that I’m a dedicated meat eater and grill enthusiast, even thought I’m a religious vegan and obsessive locavore, this is probably not defamation because this outrageous lie is probably not damaging to my (already beyond repair) reputation but it is certainly not the way I want to present myself.
My kids are growing up light speed fast, and I just realized they have to go to private school very soon. It’s more dangerous to send your kids to a Los Angeles public school than to make an unauthorized movie about the mafia. So it occurs to me, why have we been giving all this free legal information away for the last two years? What a joke. It stops now. This is our last free blog. The next blog is $9.99 or $19.97 if you buy two.
I know you’re devastated and stabbed with choking grief, so to cheer you up, enjoy this guilty pleasure (NC-17, at least). Also, I’ll have an entrancing live reading to cello of the “best of” our blogs (which doesn’t include this one) at Borders in Westwood, opening for (speaking of memoirs) the “Discussion and Signing: Actress Portia de Rossi shares her struggles with eating disorders and her sexuality in this riveting memoir” on November 10, 2010 at 7:00 PM (for tickets, ticketmaster.com; for more information, More Information). Bring tissues and a date — see you there.
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.