In a significant ruling that could make obsolete the industry practice of obtaining clearances for the use of names and likenesses in films and TV shows, the California Court of Appeal has upheld a lower court ruling that a writer who modeled a film’s character after a childhood friend is not liable for defamation or invasion of privacy.Studios and production companies routinely spend millions of dollars on attorneys fees and exec salaries vetting scripts and programs for references to possibly protected characters or to insure that a program’s use of a name or likeness does not leave the production open to a potential claim of libel, defamation, copyright infringement or invasion of privacy, among other claims. “The industry custom of obtaining ‘clearances’ establishes nothing,” the court asserted in its 11-page opinion, “other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits such as this one.” The appellate court’s opinion stems from a 1994 lawsuit filed against 20th Century Fox by Michael Polydoros, who claimed that a character named Michael Palledorous in the film “The Sandlot” was an invasion of his privacy through the misappropriation of his name and likeness. The court also opined that the filmmakers’ release of a patently fictional movie did not invade Polydoros’ privacy “and is in any event protected by constitutional guarantees of free expression. Moreover, the film is not defamatory,” the appellate court wrote in its decision, which was rendered and mailed to attorneys Sept. 11. “We think it’s an important decision, particularly for the studios,” attorney Karen Brodkin, of Wyman, Isaacs, Blumenthal & Lynne, told Daily Variety. “It may operate as a potential bar to claims by non-celebrity plaintiffs, and we believe it was a well-reasoned decision that follows a long line of appellate rulings.” Brodkin argued the appeal before the panel of judges. The film, a coming-of-age story set in the San Fernando Valley in the 1960s about members of a sandlot baseball team, was penned and directed by David Mickey Evans, who was a schoolmate of Polydoros. Similar to film’s character? The court reached its conclusion even though it noted that a photo taken of Polydoros — who was nicknamed “Squints” in the film — during the ’60s is similar to the film’s Polledorous character “right down to appellant’s eyeglasses and the color and design of his shirt.” “Other than the similarity in names and attire, the enjoyment of baseball and swimming, and the brash nature of the ‘Squints’ character, appellant cannot point to any other aspects in which the film accurately depicts his life.” To press his defamation claim, Polydoros also asserted in his lawsuit that the nickname “is a blatantly derogatory moniker” and that people began teasing the 40-year-old by calling him ‘Squints’ following the film’s release. As a result, “appellant felt ’embarrassed and humiliated’ and to make matters worse (the studio) used the photo as their principal advertising image for the film.” In January 1996, both sides filed for summary judgment, a motion which asks the court to decide the case based on the facts discovered thus far in the litigation. In March, the court ruled in favor of 20th and found in part, that “their film and the characters it portrays are protected speech under the federal and state constitutions.” The court also concluded that “The Sandlot” is “demonstrably” a work of fiction, which does not defame Polydoros “as a matter of law.” “Appellant is not entitled to recover under a commercial appropriation of name of likeness … theory merely because respondents used a name that sounds like appellant’s name or employed an actor who resembles appellant at the age of 10,” the opinion states. “At most, the fictional character physically resembles appellant in the 1960s, a fact which would be lost to anyone who was not acquainted with appellant when he was 10. No sensible person could assume or believe from seeing ‘The Sandlot’ that it purports to depict the life of Michael Polydoros. The playful exaggerations bandied by the fictional movie characters obviously do not apply to 40-year-old Polydoros.” Tom Brackey, of Fruend and Brackey, who represented Polydoros, has petitioned the appeal court for a rehearing. It appears likely the case will be heard by the California Supreme Court.
- Triptyk Studios, New York, New York
- Petrol Advertising, Burbank, California
- Bridgewater Associates, Westport, Connecticut
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- Save the Children, Fairfield, Connecticut