Understanding and Avoiding a Defamation of Character in Film Lawsuit

Documentary filmmakers must understand the various potential legal challenges that come with producing footage including someone’s life story. Or other pertinent information with which one can connect the footage with the individual. The potential for defamation of character in film lawsuit is relatively high, especially if you’ve not acquired the proper life story rights or if you’ve otherwise produced a film that the individual for whom the film represents feels you have invaded their privacy. 

What is Defamation of Character?

Perhaps you’ve been challenged with a lawsuit that notes “libel” or “slander” and you’re wondering, what does all of this even mean? Libel and slander are terms that fall under the legal umbrella of defamation.

Under a defamation lawsuit, libel represents written defamation whereas slander represents spoken defamation. But what does defamation of character mean?

Technically speaking

Defamation of character in film is considered libel because it represents written defamation. This includes any potentially defamatory statements or images that are printed or otherwise published via video.

While individual state statutes vary on defamation of character in film, the general rule is that any statement which hurts someone’s reputation on film or television could be potential for a lawsuit.

Defamation of character represents a civil court action brought forth. Stating that a false statement or representation was made.

Which harms the personal or professional representation of an individual’s character. Or otherwise causes some form of financial or emotional damages for the individual. 

Avoiding Defamation of Character in Film

Something as simple as going on camera and stating, “Jim Smith seems like he isn’t the most honest person for the job,” may not be deemed as defamatory. Because it could be represented as your own opinion of the individual and it’s important for courts to protect freedom of speech.

However, if you were to go on camera and say, “Jim Smith is dishonest and isn’t good for the job.” And there was no proof or evidence of dishonesty? Then you might face a potential defamation lawsuit.

Realize that by stating that Jim is dishonest, in a film, and then sharing that film with others, such as those who might be hiring managers for a future position for which Jim could apply, you’re creating a challenge for Jim.

The future employer could recall what you stated. Even if it was untrue, they could still pass judgement on Jim and choose not to hire him for the position based on the footage that you shared.

With Regards to Film

This is what makes defamation of character in film so important to avoid and it’s also why those who feel you have defamed or devalued their character are so quick to file a lawsuit.

To avoid defamation of character in film, you must make sure that any representation of another person in a film does not portray the individual in a negative light.

To avoid the potential for a defamation lawsuit, you’ll need to make sure that your script or film in no way can be connected back to the individual filing the lawsuit.

A claimant in a defamation lawsuit must:

• Prove that the defamation is about them.
• Demonstrate that they were identified or that they could be identified by the remark.
• Prove that the words were circulated to one or more third parties. 
• Show that the publication of the statement caused or is likely to cause them “serious harm.”

TRUTH = A Filmmaker’s Greatest Defense

So how can you possibly avoid a defamation of character lawsuit, especially in a case in which you’re producing a documentary that will show a potential individual in a negative light?

There are several options available to you in this case.

First and foremost, TRUTH is your greatest defense to a defamation lawsuit.

If you’re producing a film that could potentially result in someone feeling like you have seriously injured them. As long as you are not making claims based on assumptions. And you are not exaggerating the claim. Then you will have some pull.

You must also not be invading the privacy of the individual. If you find out the truth about an individual that you represent in your film, and the way that you represent the individual is 100% factual, they will have certain limitations to a defamation lawsuit.

Specifically, if you gather your evidence of truth from public records such as court documentation or similar proceedings.

A defamation of character lawsuit is less likely if you speak only the truth, or if you:

• You take steps to ensure that identities are fully and thoroughly hidden.
• Are extremely cautious with your claims. Avoid making any claims that you do not have hard evidence to back up.
• Obtain written permission from any individual you intend to represent in your films.
• Avoid sharing sensitive, private material that is not public knowledge.
• Support your claims with hard evidence and facts.
• Use parody or satire as a means of making bold statements. Rather than creating a more serious, factual account such as a documentary film.

Seek Legal Counsel

Additionally, we recommend consulting with an attorney prior to the publication or later production and distribution. For any film that potentially could result in someone bringing forth a defamation lawsuit against you.

Who Can Be Sued for Defamation of Character in Film?

Lawsuits for defamation of character can be brought forth for everyone that is involved in the production of the film.

Therefore, if someone were to sue for defamation of character in a film that was produced and distributed by a particular broadcast company, the lawsuit could name all of the following as liable for the defamatory statement:

• The scriptwriter
• The production company
• The actors involved
• The camera crew
• The film editor
• The broadcast company

The Most Commonly Challenged

Most defamation of character lawsuits are going to target those most financially viable to pay out for the lawsuit. Therefore it’s generally the producers and the distributors that are most impacted by these legal challenges. 

Past Defamation of Character in Film Lawsuits

Think you’re safe from defamation of character in film lawsuits? If you’re a film producer, you might want to think again! Defamation lawsuits are one of the most frequently brought up legal disputes in the film industry.

Just check out the following films which have been in the news for defamation lawsuits in the past:

• The Wolf of Wall Street sued for $25M by investment banker Andrew Greene.
• Pain and Gain sued for defamation of character by Marc Schiller.
• Hustlers sued for $40M for defamation of character by Samantha Barbash.
• Straight Outta Compton sued for $110M over defamation by Jerry Heller. 
• The Dark Knight sued by Turkish City Batman for use of the name.

The Takeaway

Defamation lawsuits come up quite frequently in the film industry. If you’re a filmmaker, taking steps to avoid defamation of character in film lawsuit is important.

Working with a proper legal professional in advance of the production can help to protect yourself and your ideas.