An increasing number of televised and cinematic biopics are taking their inspiration from living people. Here, we examine the legal risks inherent in fictionalising the stories of real people, and the kinds of claims such productions may face.
Outside of satire and parody, biopics have traditionally been the domain of prominent figures who are either deceased or no longer in the public eye.
More fictional television series and films, however, are using the lives of living, active individuals as their source material and, in some cases, covering events that only happened a few years before their release. Take, for example, the mini-series This England, which dramatises Boris Johnson’s handling of the COVID-19 pandemic, and which was broadcast only two years after the real events occurred.
What are the risks of fictionalising real people?
Understandably, fictional stories based on real events or people will always be popular because they provide a window to moments of historical, cultural, or societal importance that the average person would not have been able to witness otherwise.
Creating a fictional work from a living person or a real event carries greater legal risk, however. By presenting a version of a real person’s life on screen, television or filmmakers may be inadvertently leading the audience to associate the fictional events with the real person. If the portrayal is a negative one, this may cause significant reputational damage to the person, and may even lead that individual to make a claim against the creators for defamation.
The Baby Reindeer phenomenon is a prominent example of how negative portrayals of individuals can affect their lives and cause legal headaches for the creators.
The Netflix series is based on the experiences of Richard Gadd, a Scottish comedian, who was allegedly stalked by a woman in 2014.
Gadd, who both wrote the series and plays his fictional counterpart Donny Dunn, disguises his alleged stalker behind the character Martha, who becomes obsessed with, stalks, harasses, and even assaults Dunn.
Despite changing the name and certain details, however, Gadd’s portrayal of Martha leaves enough distinguishable material, including real social media posts, to allow ‘cybersleuths’ to track down and identify ‘the real Martha’ online.
Both Gadd and Netflix now face a defamation claim worth $170m in the California Court, with ‘the real Martha’s’ lawyers accusing them of making “no effort to investigate the accuracy of these statements and portrayals, or take further measures to hide her identity”.
In particular, Gadd and Netflix are accused of presenting the series as a ‘true story’, rather than ‘based on a true story’, and for presenting Martha as a convicted stalker when ‘the real Martha’ was not convicted of a crime.
What does the law say about ‘true stories’?
While it is legally safer to seek the consent of an individual before dramatising elements of their life, it is not required.
This is because England & Wales does not recognise an individual’s ‘right’ to the story of their life, making it entirely possible for someone to tell that story and profit from it without their permission.
Nevertheless, creators and production companies can leave themselves open to various types of claims, including:
- defamation claims, where an individual’s portrayal is inaccurate, misleading, or capable of causing them serious harm;
- breach of privacy claims, where information is used and portrayed that was obtained unlawfully, or that was not available in the public domain;
- intellectual property claims, if trade marked elements of an individual, such as names or logos, are used without permission.
What should I do if I am portrayed in a television series or film?
Seek legal advice as soon as you become aware that a production company is basing a work of fiction on you or elements of your life.
Your lawyer will liaise with the company to ensure you can check any information upon which they are basing their story and, if possible, submit new information to ensure the work is accurate and unbiased.
If the work causes serious harm to your reputation, then you may be able to make a claim for defamation, or a breach of privacy claim where private information that is not in the public interest has been exposed.
How can ‘true stories’ avoid defamation claims?
Historically, works of fiction have used disclaimers such as ‘Based on a true story’ to identify that the work takes information from, but does not wholly replicate, real people or events.
This may not be enough, however, if the work is done in such a way as to make it difficult for the viewer to distinguish between what is fiction, and what is fact.
Netflix’s worldwide hit The Crown, for example, faced criticism for not including a disclaimer that it was fictionalised. This led some viewers to believe all scenes were based on real-life events (which its creator Peter Morgan confirmed was not the case).
Another Netflix series, The Queen’s Gambit, also recently settled a claim with chess Grandmaster Nona Gaprindashvili for mentioning her by name and stating that she was “a female world champion and has never faced men” during a scene.
Despite the fact that the series is based on a fictional chess player, its realism means establishing where creative licence has been taken is more complex.
Avoiding such claims, therefore, requires a careful blend of ensuring factual accuracy, and implementing cues that help viewers to understand that what they are watching is not a documentary, but a work of fiction.
Such cues may be more subtle, such as fantastical or satirical elements within the story, or more explicit. In the mini-series Chernobyl, for example, it is made clear at the end of the series that Emily Watson’s character Ulana Komyuk represents numerous individuals responsible for managing the disaster.
The future of fiction
It is undeniable that film and television makers have a responsibility to be as accurate as possible when creating realistic dramas based on real people and events, not least because they often have a significant bearing on the viewer’s interpretation and understanding of the story’s subject matter.
This does not mean the death of creative licence in film and television, however. If done with caution, creative licence can render the subject matter more accessible to a larger audience, or help to increase interest in something of historical or cultural importance.
This should be done with caution, however, and, if possible, the buy-in of any of the individuals concerned. If this is not possible, then it is up to the creators to find ways of communicating that the work is not a like-for-like retelling of events, but a work of fiction inspired by something real.