The California Supreme Court ruled Wednesday it would review a lower court’s ruling on how far film-makers can go when basing fictional characters on real people without their permission.
Chief Justice Ronald George and Justices Stanley Mosk, Joyce Kennard and Kathryn Mickle Werdegar agreed to take a look at the case of Michael Polydoros, which has sparked national interest as a result of the ruling by the Court of Appeal. Four of the seven justices voted to review.
The Court’s move continues the three-year legal tussle which stemmed from a 1994 lawsuit filed against 20th Century Fox by Polydoros, who claimed that a character named Mi-chael Palledorous in the film “The Sandlot” was an invasion of his pri-vacy through the misappropriation of his name and likeness.
The ruling Wednesday sets the stage for industry attorneys to obtain a definitive decision on the tricky issue of basing film and TV characters on real people without obtaining clear-ances.
Typically, studios and webs obtain such clearances in order to avoid litigation.
But a Court of Appeal ruled earlier this year, in part, that the First Amendment insulates filmmakers from such claims as invasion of pri-vacy.
Caution to the wind?
The opinion also called into ques-tions the need for the industry practice of obtaining clearances for the use of names and likenesses in films and TV shows.
In August, the California Court of Appeal upheld a lower court ruling that the film’s scribe and director David Mickey Evans, who modeled a charac-ter after Polydoros, a childhood friend, is not liable for defamation or invasion of privacy.
Because of its import, the opinion was published the following month by the Court. (Daily Variety, Sep. 24).
“I believe the Court of Appeal is correct, and I also believe that since the key First Amendment case in this area was a concurring opinion of the Cali-fornia Supreme Court, perhaps the Supreme Court is taking this oppor-tunity to render a majority opinion,” attorney Bruce Isaacs, who defended 20th Century Fox and Evans, told Daily Variety.
That case, Guglielmi vs. Spelling-Goldberg, centered on a fictional film about Rudolph Valentino, who was dead.
Rose Bird, Chief Justice at the time, rendered the opinion that a fictional film does not lose its First Amendment protection because it was made for profit.
Lower court ruling
The court opined that the filmmak-ers’ 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.”
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 produc-tion 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 of Appeal 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.”
Thomas Brackey, attorney for Polydoros, could not be reached for comment.