Bordering on Reality: Can a Work of Fiction Give Rise to a Misappropriation Claim?

By Rochelle L. Wilcox

How much of a person's life can you use in a fictional work before the use becomes an unlawful misappropriation of that person's identity? Are there any limits when the use is in fiction, rather than in advertising, the genre that traditionally gives rise to misappropriation claims? These questions presently are before a New York trial court in Michael Costanza's suit against comedian Jerry Seinfeld.¹ The real-life Costanza claims that Seinfeld used Costanza's name, likeness and persona to create the George Costanza character in Seinfeld's long-running television series, and that this use violated Costanza's rights under New York's misappropriation statute and invaded Costanza's privacy. Costanza seeks damages of $100 million.

A Similar Case Across The Country

The reach of California's misappropriation statute almost was considered by the California Supreme Court in Polydoros v. Twentieth Century Fox Film Corp., based on the Fox movie, "The Sandlot." In that case, Michael Polydoros claimed that his identity was misappropriated and his privacy invaded by use of his name-or at least a very similar sounding name-and his physical characteristics as a youth to create the character Michael "Squints" Palledorous in the movie. Polydoros claimed that he and the movie's creator, David Mickey Evans, played baseball together in the San Fernando Valley some 30 years earlier and that, like the fictional "Squints," Polydoros wore thick glasses and, at times, striped T-shirts.

Both the trial court and the Court of Appeal rejected Polydoros' claim, holding that the movie was protected speech and therefore not a misappropriation or invasion of privacy.² Indeed, the Court of Appeal gave short shrift to Polydoros' misappropriation claim, stating that "[t]he law was never intended to apply to works of pure fiction."³ Quoting a New York case addressing a similar issue,⁴ the California Court of Appeal held:

It is generally understood that novels are written out of the background and experiences of the novelist. The characters portrayed are fictional, but very often they grow out of real persons the author has met or observed ... The end result may be so fictional as to seem wholly imaginary, but the acorn of fact is usually the progenitor of the oak, which when fully grown no longer has any resemblance to the acorn. In order to disguise the acorn and to preserve the fiction, the novelist disguises the names of the actual persons who inspired the characters in his book. Since a novel is not biography, the details of the character's life and deeds usually have, beyond possible faint outlines, no resemblance to the life and deeds of the actual person known to the author. Thus, the public has come to accept novels as pure fiction and does not attribute their characters to real life.⁵

The Court of Appeal then held that the First Amendment "unequivocally" barred Polydoros' claim, and that this constitutional protection was not diminished by use of the "Squints" character in the movie's advertising.

In rendering its decision, however, the Court of Appeal emphasized the facts of the case, conceivably leaving open the possibility that a misappropriation claim could be based on a character in a fictional work under different circumstances. Specifically, the Court relied heavily on the age difference between plaintiff and "Squints," finding that the "marked difference in age and appearance" made it unlikely that anyone would confuse Polydoros and his fictional namesake.⁶ The Polydoros court also noted that the events of the film were fictional, and therefore did not give rise to a claim for public disclosure of private information. Polydoros sought review by the California Supreme Court, arguing that: (1) California law improperly gave more protection to celebrities in misappropriation claims than to "common citizens"; and (2) even if the movie itself was protected expression, promotional materials for the movie using the "Squints" character should not be protected. The Supreme Court apparently was interested in these arguments, and accepted the case for review.⁷ As detailed below, however, the high court dismissed review after the matter had been fully briefed and reinstated the Court of Appeal opinion.

First Amendment Protection

Defendants responded to Polydoros' arguments to California's highest court by pointing out the significant First Amendment freedoms that traditionally have been given to writers of fiction. Defendants argued that adopting Polydoros' position-that no writer can safely use the name and likeness of a real person, even 30 years later-would completely revise the protections long afforded to writers and publishers, and prevent them from incorporating any people or events from their own lives into their works of fiction. Defendants supported their arguments by citing the long line of cases protecting works like "The Sandlot." Indeed, it is well established in the United States that movies-like other forms of expressive communication-are fully protected by the First Amendment because they constitute a "significant medium for the communication of ideas."⁸ Under this rule, it is irrelevant if the work is entertaining or if it is essentially a commercial enterprise; all forms of expression are protected because they further the goals of the First Amendment. Even unauthorized biographies have found protection under this rule as legitimate discussions of newsworthy topics. Thus, in rejecting the argument that a biography can give rise to a misappropriation claim, a New York appellate court asserted:

We think it does not matter whether the book is properly described as a biography, a fictional biography, or any other kind of literary work. It is not for a court to pass on literary categories, or literary judgment. It is enough that the book is a literary work and not simply a disguised commercial advertisement for the sale of goods or services.⁹

Defendants argued that courts consistently have rejected misappropriation claims based on the use of a character similar to the plaintiff in works of fiction and non-fiction.¹⁰ Professor William Prosser takes the position that even a significant use of information from plaintiff's life will not create liability, asserting that:

there is no liability when the plaintiff's character, occupation, and the general outline of his career, with many real incidents in his life, are used as a basis for a figure in a novel who is still clearly a fictional one.¹¹

This protection makes sense, given the nature of fiction. An author writes from a perspective developed over a number of years and influenced by the people and events in her life. If those people or events are off-limits, the author will be limited in her ability to tell the story she wants to tell-she will be forced to separate her work from real life and it will suffer as a result. As one distinguished commentator explained:

No commercial injury greater or different in kind is presented when the story is fictional rather than factual, and is clearly labeled as such. While the argument has been made that such a fictionalized biography is no different from use of identity on non-media merchandise and advertising, this argument ignores the history of the first amendment ... [which] makes it clear that books, magazines, newspapers, movies, television docudramas, and the like have a favored position in our law and culture. All these forms of media convey ideas, information, and role models, as well as entertain. I believe that the opinion of the California Supreme Court states the matter well in the Rudolph Valentino case: "[A]ny assertion that fictional accounts pose a unique threat to the right of publicity not found in truthful reports is simply not justified." If fictional treatment is false and denigrating, there is always the possibility of a claim for defamation or false light invasion of privacy.¹²

Based on the uniform authority protecting works of fiction-even those that make extensive use of an individual's persona-defendants urged the Supreme Court to hold that under the First Amendment no claim can be brought for misappropriation in a fictional work.

Use of Persona in a Movie Is Not a "Commercial" Use

Defendants next argued that Polydoros had failed to establish the elements of a misappropriation claim, i.e., (1) use of his name or likeness; (2) for commercial purposes; (3) without consent; and (4) resulting in damages.¹³ Defendants pointed out that misappropriation claims are limited to advertising for "products, merchandise, or goods or services,"¹⁴ and that this limit is required by both the First Amendment and the California Constitution. Without this limit, all uses of a name or likeness-in fiction, non-fiction, or any other commercial medium-could form the basis of a misappropriation claim, paralyzing society's ability to exchange information or create literary works. Thus, both state and federal courts consistently have held that because books, films, and magazines are by definition not "commercial" uses, mere inclusion of a person's name or likeness in such a work is not actionable.¹⁵ The reasons for this protection were made clear by Chief Justice Bird in her concurring opinion in Guglielmi v. Spelling-Goldberg Productions, a case involving claims by the heirs of Rudolph Valentino for televising a "fictionalized version" of Valentino's life.

Whether the publication involved [is] factual and biographical or fictional, the right of publicity has not been held to outweigh the value of free expression. [Any other result would mean that] the creating of historical novels and other works inspired by actual events and people would be off limits to the fictional author ... [I]t is difficult to imagine anything more unsuitable, or more vulnerable under the First Amendment, than compulsory payment, under a theory of appropriation, for the use made of [an individual's identity in a work of fiction].¹⁶

Protection of Promotional Materials

Next, defendants challenged Polydoros' claim that even if the movie was protected, use of the "Squints"character in promotional materials should not be. The defendants contended that for protected works to have any practical value, the protection also must extend to truthful promotional activity related to those works. This argument prevailed in Montana v. San Jose Mercury News, Inc.,¹⁷ where a California Court of Appeal held that posters of Joe Montana created to promote the defendant newspaper were exempt from misappropriation claims, even though the posters of Joe Montana were sold to members of the public. As Chief Justice Bird explained in her concurrence in Guglielmi:

Having established that any interest in financial gain in producing the film did not affect the constitutional stature of [defendants'] undertaking, it is of no moment that the advertisement may have increased the profitability of the film. It would be illogical to allow respondents to exhibit the film but effectively preclude any advance discussion or promotion of their lawful enterprises. Since the use of [Rudolph] Valentino's name and likeness in the film was not an actionable infringement of Valentino's right of publicity, the use of his identity in an advertisement for the film is similarly not actionable.¹⁸

Similarly, in Polydoros there was no evidence that defendants had made commercial use of the "Squints" character other than to promote their movie. Consequently, defendants strongly urged the Supreme Court to reject Polydoros' argument that the promotional materials for the movie were not protected.

Missing Elements of Misappropriation Claim

Finally, defendants challenged Polydoros' misappropriation claim on the ground that they did not use Polydoros' actual likeness. Relying on cases holding that statutory misappropriation claims are dependent on use of plaintiff's actual name and likeness,¹⁹ defendants urged the court to find that the use of a similar name and some of Polydoros' adolescent characteristics could not constitute use of his actual name and likeness, as contemplated by the statute.²⁰ Moreover, pointing out that other courts had expressly rejected claims of common law misappropriation where the work clearly was fictional and there were significant differences between the plaintiff and the character, defendants contended that the similarities between Polydoros and "Squints" did not lead to the conclusion that they were one and the same.²¹ Indeed, as discussed above, courts routinely have given authors license to draw from people and places and their background without finding that the authors have thus taken their actual name and likeness.

The Supreme Court Response

Following submission of the briefs on the merits, defendants asked the Supreme Court to reconsider its grant of review and reinstate the Court of Appeal's opinion. Defendants claimed that the law was clearly established that the movie-and its advertising-were protected by the First Amendment. In addition, defendants asserted that Polydoros failed to establish essential elements of his claim, i.e., that defendants' use was commercial, and that defendants had used his actual name and likeness. The Supreme Court agreed: It withdrew its grant of review, reinstating the Court of Appeal opinion and dismissing Polydoros' claims.

Conclusion

Thus, in California at least, the law regarding the fictional use of an individual's likeness appears once again to be a relatively stable and predictable area of First Amendment jurisprudence. As Jerry Seinfeld and his producers have learned, that may not stop individuals from claiming that they have been wronged because a fictional character bears some alleged resemblance to them. But under the Court of Appeal's decision in Polydoros, authors in California can feel fairly secure in their general right to draw on memories of actual events and people in creating their works. Although the outer limits of this right have not been fixed, the threat posed by the Supreme Court's grant of review in Polydoros has passed.

FOOTNOTES:

1. See Costanza v. Seinfeld, et al., New York County, New York Supreme Court Case No. 98119288. Elizabeth McNamara and Carolyn Killeen Foley, attorneys in Davis Wright Tremaine's New York office, represent defendants.
2. See Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318, 79 Cal. Rptr. 2d 207 (1997). The Court of Appeal also rejected Polydoros' negligence and defamation claims.
3. Id. at 322.
4. The Court of Appeal found "particularly compelling the reasoning in the New York case of People v. Charles Scribner's Sons (1954) 205 Misc. 818 [130 N.Y.S.2d 514]."
5. Polydoros, 67 Cal. App. 4th at 323 (citation and internal quotes omitted).
6. Id. at 323.
7. Davis Wright Tremaine attorneys P. Cameron DeVore, Kelli L. Sager, Karen N. Frederiksen and Christopher A. Pesce represented defendants Twentieth Century Fox Film Corporation and Fox Video, Inc., now know as Twentieth Century Fox Home Entertainment, Inc., before the California Supreme Court.
8. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 502 (1952). See also People v. Freeman, 46 Cal. 3d 419, 425, 250 Cal. Rptr. 598 (1988), cert. denied 489 U.S. 1017 (1989) ("[r]egardless of our view of the social utility of this particular motion picture, our analysis must begin with the premise that a non-obscene motion picture is protected by the guaranty of free expression found in the First Amendment").
9. Frosch v. Grosset & Dunlap, Inc., 427 N.Y.S.2d 828, 829 (1980).
10. See, e.g., Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994); Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989); Doe v. Roe, 638 So. 2d 826 (Ala. 1994), Rosemont Enterprises, Inc. v. McGraw-Hill Book Co., 380 N.Y.S.2d 839 (Sup. Ct. 1975).
11. See Prosser, Privacy, 48 Calif. L. Rev. 383, 405 (1960).
12. J.T. McCarthy, The Rights of Publicity and Privacy at § 8.9[F] (Release #11) (April 1994) (citing Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860, 79 Cal. Rptr. 352 (1979) (Bird, C.J., concurring)).
13. See, e.g., Fleet v. CBS, Inc., 50 Cal. App. 4th 1911, 1918 58 Cal. Rptr. 2d 639 (1996), a misappropriation case in which Davis Wright Tremaine attorneys Kelli Sager and Karen Frederiksen represented defendant CBS. Other cases require also that the use be knowing and that there be a direct connection between the use and the commercial purpose. See, e.g., Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 417-18 (9th Cir. 1996).
14. See Cal. Civ. Code § 3344.
15. See, e.g., Newton v. Thomason, 22 F.3d 1455 (9th Cir. 1994); Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995); Matthews, supra, 15 F.3d at 438 n.5; Benavidez v. Anheuser Busch, Inc., 873 F.2d 102 (5th Cir. 1989).
16. 25 Cal. 3d 860, 872, 79 Cal. Rptr. 352 (1979) (Bird C.J., concurring) (footnotes, citations and internal quotes omitted).
17. 34 Cal. App. 4th at 797.
18. See Guglielmi, supra, 25 Cal. 3d at 873 (citations omitted).
19. See, e.g., White v. Samsung Elecs. America, Inc., 971 F.2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993); Nurmi v. Peterson, 10 U.S.P.Q. 2d 1775 (C.D. Cal. 1989).
20. See Cal. Civ. Code § 3344.
21. See, e.g., Middlebrooks v. Curtis Publ'g Co., 413 F.2d 141 (4th Cir. 1969); Aguilar v. Universal City Studios, Inc., 174 Cal. App. 3d 384, 219 Cal. Rptr. 891 (1985); Charles Scribner's Sons, supra, 130 N.Y.S.2d 514.