Q:  What are the legalities of using actors to portray real people in a film — a fictionalized bio-pic in which the main character is purely fiction but some of the other characters are real, both living and deceased?  For example, if Forrest Gumpdid not use actual footage but instead chose to represent those scenes using actors to represent the famous people?

A:  I really liked Forrest Gump when I saw it.  I’m pretty sure I even cried in it.  Now I hate it for some reason.  Maybe it’s just a general backlash against Tom Hanks’ haircut in The Da Vinci Code.  But let’s not get into that.

As to your question…we Americans generally think we all have a 1st Amendment right that gives us the ability to say what we please when we please, which has lead to such enlightening phenomena as Ashton Kutcher’s constant Tweeting (thanks a lot, Founding Fathers).  What is important to understand, however, is that this right of free speech is not absolute.  We are not always free to say what we please, especially when it comes to saying things about other people.

Before answering your question, a word of warning:  whether or not your depiction of a real person in a film can open you up to liability is not a question that has a definite answer.  It requires a fact specific analysis and even then, it may not be entirely clear how strong of a ground you stand on.  Also, you’ve got to remember that we’re dealing with people and people are nuts.  Thus, even if it appears you’ve done everything by the books and you’re legally justified in doing what you’re doing, you could still get sued by someone who didn’t like the way you depicted him or her in a movie.

Now that I’ve got that CYA out of the way, the following is a list of the most likely claims you risk receiving by the real people (or their heirs) that you are portraying in your movie:  (a) defamation; (b) right of publicity violation; and (3) violation of their right of privacy (under which there are the following subsets (i) public disclosure of private facts; (ii) false light; and (iii) misappropriation).  Scared yet?

To gauge the risk of your movie giving rise to one of these claims, there are two important questions you must first ask about each person you’re depicting in your film:  (1) is he/she a public figure?; and (2) is he/she alive?

Judging by your question, I’m going to assume that you’re depicting people who are in the public eye (e.g., celebrities or historical figures).  That makes things a little easier.  You are on much more dangerous ground if you are depicting private individuals because they have lower hurdles over which they have to jump in order to prove defamation or a violation of their right of privacy.  In fact, it would be difficult for a public figure to argue that you had violated their right of privacy so we will assume for the purposes of this blog that this wouldn’t be an issue.

Therefore, you’ve got to worry about defamation and right of publicity issues.  Basically, defamation is the publication of a statement about a person that is untrue and that hurts the person’s reputation.  The right of publicity, on the other hand, is a right every person has to prevent someone else from using that person’s name, face, etc. in a commercial manner.  In other words, you can’t just take my picture off of our website and stick it on a bottle of dishwashing liquid (so don’t even try it).

If the individuals you are portraying are deceased, you don’t have to worry about defamation.  You can’t defame the dead.  ANDREW HAMILTON HAD A FOOT FETISH!!!  (See?  Nothing happened.)

If your public figure is living, on the other hand, you are liable for defamation if you committed your defamation with “actual malice,” which means that you either knew your statement was untrue when you published it, or you acted with reckless disregard for its truth.  In other words, if you’re portraying Dick Cheney in your serious movie, do not show him mercilessly beating a one-legged orphan if you know he never did such a thing.  I’ll leave the issues of jokes and parodies for another blog, except I’ll say this:  if it’s obvious to all that you’re making a joke, then it’s probably not defamation.  Of course, it’s a bit more complicated than that, and that’s why I’m leaving it for another blog.

With respect to the right of publicity, it may not matter if the person you’re portraying is alive or dead.  Under California law, the dead do have a right of publicity, which is held by their heirs.  It is also true that most courts hold that anybody has a right of publicity, whether they’re a public figure or not.  Therefore, you should never use anyone’s name, image, etc. in a commercial manner without that person’s (or his/her heirs’) permission.  The good news in your case is that courts have held that motion pictures do not qualify as “commercial” uses for the purposes of publicity rights.  While some of them do make money (hopefully yours will as well), courts have viewed them more as essentially expressive, artistic works (apologies if you’re reading this and disagree, Mr. Bay).  Be aware, however, that while your film is expressive, any merchandising or commercial tie-ins (Mr. Bay’s ears just perked up) would constitute commercial uses, so don’t put your real life character on a t-shirt or McDonald’s Happy Meal toy.

Hopefully this will give you a little guidance as you decide how to craft your movie.  Again, this is a tricky area so I would recommend speaking with an attorney before releasing your movie.  Of course, no need if the famous person you’re portraying happens to be a certain entertainment law blogger.  Like John Malkovich, I can nail the role of me so none of this should be an issue.

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.