I am currently writing a script for a feature length movie. The movie is very loosely based on this guy i went to high school with. What are the likeness rights for Texas that I should know? Can I use his name? What do i need premission for? What could get me in trouble? Any information would be helpful!What is the name of your state (only U.S. law)?
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Likeness Rights? TX
- Thread starter ajgraham
- Start date
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quincy
Senior Member
Any time you write about an identified or identifiable person, you run the risk of being sued and, for a movie that has wide distribution, you open yourself up to not only the laws of Texas but of other states, as well.
In Texas, you would probably be safe from a misappropriation of a name or likeness invasion of privacy action, unless the individual you are writing about has a name that has some independent value to begin with (as would be the case with a celebrity). The Texas tort of misappropriation follows the Restatement (Second) of Torts which states, in essence, that it is an invasion of privacy to appropriate a name or likeness for the value associated with it. . . . . if the person can be identified from the publication and there is an advantage or benefit to the person using it.
To establish a misappropriation claim in Texas, there must be something unique and valuable about the person's name and it must be shown that you "cashed in" on the value of this name through your use of it.
If the person you are patterning your character after has a name or identity with no monetary value attached to it, you would probably be okay writing about him in Texas. However, the misappropriation of a name or likeness tort is broader in other states and can include ANY use of a person's name or likeness for a commercial purpose or monetary gain. You have the potential for being sued, therefore, in another state by this individual, under another state's laws.
Although Texas does not recognize the invasion of privacy tort of false light, other states do, and this, too, could raise issues for you with your script/movie. If your character is a less-than-savory person, for instance, this could place the real individual in a false light - people who know this real individual could assume he is as unsavory as your character is.
Your biggest worry, I believe, could be with defamation. If what you say about this identified or identifiable person, through characteristics or traits given the character in your script, is false about the real person, and it can be shown to have injured the real-life person's reputation (ie. your character is a drug dealer and the real person isn't), then you could be sued for defamation.
Your wisest course of action, whenever writing about a real and recognizable individual, is to obtain permission from the individual prior to writing about that individual and, certainly, before publication of any material about the person. Permission to use the name or likeness of an individual will often be required by any producer or publisher prior to purchase, production or publication anyway, as they will want to avoid any possibility of a lawsuit arising from the work.
In Texas, you would probably be safe from a misappropriation of a name or likeness invasion of privacy action, unless the individual you are writing about has a name that has some independent value to begin with (as would be the case with a celebrity). The Texas tort of misappropriation follows the Restatement (Second) of Torts which states, in essence, that it is an invasion of privacy to appropriate a name or likeness for the value associated with it. . . . . if the person can be identified from the publication and there is an advantage or benefit to the person using it.
To establish a misappropriation claim in Texas, there must be something unique and valuable about the person's name and it must be shown that you "cashed in" on the value of this name through your use of it.
If the person you are patterning your character after has a name or identity with no monetary value attached to it, you would probably be okay writing about him in Texas. However, the misappropriation of a name or likeness tort is broader in other states and can include ANY use of a person's name or likeness for a commercial purpose or monetary gain. You have the potential for being sued, therefore, in another state by this individual, under another state's laws.
Although Texas does not recognize the invasion of privacy tort of false light, other states do, and this, too, could raise issues for you with your script/movie. If your character is a less-than-savory person, for instance, this could place the real individual in a false light - people who know this real individual could assume he is as unsavory as your character is.
Your biggest worry, I believe, could be with defamation. If what you say about this identified or identifiable person, through characteristics or traits given the character in your script, is false about the real person, and it can be shown to have injured the real-life person's reputation (ie. your character is a drug dealer and the real person isn't), then you could be sued for defamation.
Your wisest course of action, whenever writing about a real and recognizable individual, is to obtain permission from the individual prior to writing about that individual and, certainly, before publication of any material about the person. Permission to use the name or likeness of an individual will often be required by any producer or publisher prior to purchase, production or publication anyway, as they will want to avoid any possibility of a lawsuit arising from the work.
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follow up
Ok so the person in the script shares the name of a guy that attended the same high school as me. He is in no way famous, and he has a fairly common name(I googled it and found a significant number of results for numerous different people that are in no way assoicated in anyway with what the script is about). I guess what I am getting at is, isn't it always a real possibility (maybe even a high probabilty) that a character name in a movie will coincide with the name of an actual person? It is even possible that the charecter may have some similar physical features. Could it not be argued in my case that it is purely coincidental that the name chosen for this character is the same name of a number of real live people, one of whom happens to have attended high school with? The script does not portray the character in any malicious way, he isn't a killer, psyco, drug dealer, etc. He is simply a guy who dances to the beat of a different drum I would say. Does any of this change anything?
Secondly, if the movie were to be distributed on a large scale, the likeness rights and rights to privacy/publicity of any individual would be applied based on the state in which they reside. In other words, a person living in Texas could not fly to California to sue under California laws, correct?
Ok so the person in the script shares the name of a guy that attended the same high school as me. He is in no way famous, and he has a fairly common name(I googled it and found a significant number of results for numerous different people that are in no way assoicated in anyway with what the script is about). I guess what I am getting at is, isn't it always a real possibility (maybe even a high probabilty) that a character name in a movie will coincide with the name of an actual person? It is even possible that the charecter may have some similar physical features. Could it not be argued in my case that it is purely coincidental that the name chosen for this character is the same name of a number of real live people, one of whom happens to have attended high school with? The script does not portray the character in any malicious way, he isn't a killer, psyco, drug dealer, etc. He is simply a guy who dances to the beat of a different drum I would say. Does any of this change anything?
Secondly, if the movie were to be distributed on a large scale, the likeness rights and rights to privacy/publicity of any individual would be applied based on the state in which they reside. In other words, a person living in Texas could not fly to California to sue under California laws, correct?
quincy
Senior Member
There are many many cases that have been heard under circumstances similar to the one you are presenting here, aj.
For a review of some U.S. lawsuits that were brought over character portrayals in fiction, you can look at: Geisler v Petrocelli, Bindrum v Mitchell and Fetler v Houghton-Mifflin (these the "character" plaintiff won), and Welch v Penguin Books and Springer v Viking Press (these the author defendant won). A famous English suit, E. Hulton & Co v Jones, was brought by Artemus Jones over a story written about a fictional character named Artemus Jones, who was cheating on his wife. The real life Artemus Jones was able to win a suit against the writer of the story, because friends of the real Jones believed the story was about him.
What matters to a court is if substantial similarities can be found between a character in an author's fictional work and a real life person, a real person who generally must be found to have a real life connection to the author. Names can be changed, appearances can be changed, locations can be changed - but if it can be shown that the character was modeled after a real person, and that real person objects to how the character was portrayed, and the real person suffers some demonstrable harm as a result of the portrayal, the author may be sued - and the author can potentially lose the suit.
The fact that in your mind your character is not being portrayed in a way that would defame or demean your friend does not mean that your friend will not object to the portrayal.
As for where your high school friend could sue, he could sue in any court that can be found to have authority to hear and decide the case. Personal jurisdiction must be proved. State courts always have personal jurisdiction over state residents, but jurisdiction can also be established where a person does business, or jurisdiction can potentially be in a state where the injury occurred (if there is a clear connection with the forum state), or jurisdiction can potentially be in a state where the person has a substantial presence, even if the person does not do business there or reside there.
State and federal courts have a "sliding scale" for measuring the amount of contact sufficient enough to give a court personal jurisdiction. Determining jurisdiction for a widely distributed movie would be no different than determining jurisdiction for an internet action.
With all of that said, however, if your high school friend decides to sue you, he would probably sue you in the state where he resides - as it is cheaper and easier for him to do that, and that is where any harm that he suffered would most likely be the greatest.
The big question marks are whether your high school friend would recognize himself in your character (if you use his name, of course, this would be relatively easy), and whether he would take offense at how he is portrayed (enough so that he would file suit against you) and, then, if the way he is portrayed causes him enough harm to support a lawsuit.
The odds of him suing you are probably not great. But, if a movie is made from your script and it is a hugely successful movie, and it looks to your former friend as if he could make a huge chunk of money by suing you, then the risk of a lawsuit could definitely be greater.
I advise that you speak with an attorney in Texas, who can detail for you all of the legal risks you could face with your script. Perhaps he will suggest taking out insurance enough to cover the costs of a lawsuit should there be one. . . . and perhaps that is enough.
For a review of some U.S. lawsuits that were brought over character portrayals in fiction, you can look at: Geisler v Petrocelli, Bindrum v Mitchell and Fetler v Houghton-Mifflin (these the "character" plaintiff won), and Welch v Penguin Books and Springer v Viking Press (these the author defendant won). A famous English suit, E. Hulton & Co v Jones, was brought by Artemus Jones over a story written about a fictional character named Artemus Jones, who was cheating on his wife. The real life Artemus Jones was able to win a suit against the writer of the story, because friends of the real Jones believed the story was about him.
What matters to a court is if substantial similarities can be found between a character in an author's fictional work and a real life person, a real person who generally must be found to have a real life connection to the author. Names can be changed, appearances can be changed, locations can be changed - but if it can be shown that the character was modeled after a real person, and that real person objects to how the character was portrayed, and the real person suffers some demonstrable harm as a result of the portrayal, the author may be sued - and the author can potentially lose the suit.
The fact that in your mind your character is not being portrayed in a way that would defame or demean your friend does not mean that your friend will not object to the portrayal.
As for where your high school friend could sue, he could sue in any court that can be found to have authority to hear and decide the case. Personal jurisdiction must be proved. State courts always have personal jurisdiction over state residents, but jurisdiction can also be established where a person does business, or jurisdiction can potentially be in a state where the injury occurred (if there is a clear connection with the forum state), or jurisdiction can potentially be in a state where the person has a substantial presence, even if the person does not do business there or reside there.
State and federal courts have a "sliding scale" for measuring the amount of contact sufficient enough to give a court personal jurisdiction. Determining jurisdiction for a widely distributed movie would be no different than determining jurisdiction for an internet action.
With all of that said, however, if your high school friend decides to sue you, he would probably sue you in the state where he resides - as it is cheaper and easier for him to do that, and that is where any harm that he suffered would most likely be the greatest.
The big question marks are whether your high school friend would recognize himself in your character (if you use his name, of course, this would be relatively easy), and whether he would take offense at how he is portrayed (enough so that he would file suit against you) and, then, if the way he is portrayed causes him enough harm to support a lawsuit.
The odds of him suing you are probably not great. But, if a movie is made from your script and it is a hugely successful movie, and it looks to your former friend as if he could make a huge chunk of money by suing you, then the risk of a lawsuit could definitely be greater.
I advise that you speak with an attorney in Texas, who can detail for you all of the legal risks you could face with your script. Perhaps he will suggest taking out insurance enough to cover the costs of a lawsuit should there be one. . . . and perhaps that is enough.
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Quincy you have been a great deal of help. I am going to review those cases you suggested and make a final decision from there. I think for now I am going to keep the name of the title character the same (it just has such a jiggle to me) and if/when I am lucky enough to have any kind of serious large scale interest in the script I will enlist a lawyer to review the individual aspects of my case. Thanks again!
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