This article, Part II of a series, explores the right of publicity by addressing the ways content creators can avoid liability by incorporating their own creative expression into their works. This discussion will cover the use of composite characters, the "transformative use" test and other methods of weighing creative contributions, and the application of such rules to less traditional media platforms, such as video games. Artists and other content creators should be careful to balance their desire to draw inspiration from real life against the law's expectation that they contribute their own substantial creative expression.
Composite Characters—Greene v. Paramount Pictures
In a suit decided at the trial court level on September 30, 2015, concerning The Wolf of Wall Street film—billed as "based on actual events"—the plaintiff, Andrew Greene, brought simultaneous right of publicity and defamation claims, alleging that he was defamed by the portrayal of a character that resembled him and was shown "committing crimes and engaging in 'outrageous and depraved sexual and drug activities.'" Greene v. Paramount Pictures Corp., 138 F. Supp. 3d 226, 234 (E.D.N.Y. 2015).
Mr. Greene worked at the real-life, New York‒based Stratton Oakmont brokerage house alongside the company's founder and his childhood friend, Jordan Belfort, who was played in The Wolf of Wall Street film by Leonardo DiCaprio. Another character in the movie, Nicky "Rugrat" Koskoff, was inspired, at least in part, by Mr. Greene. The film was released on December 25, 2013.
Ultimately, Mr. Greene's right of publicity and defamation claims failed for similar reasons. The plaintiff conceded to being a public figure, meaning that to succeed in his defamation claim, he needed to show that the defendants acted with "actual malice" (a knowing or reckless disregard for the truth). Greene v. Paramount Pictures Corp., No. 19-135-cv, 2020 WL 3095916, at *2 (2d Cir. 2020). And as part of its holding that the defendants did not act with actual malice, the U.S. Court of Appeals for the Second Circuit on June 11, 2020, affirmed the trial court's ruling that no reasonable viewer would believe that the defendants intended the disputed character to actually depict Mr. Greene, the plaintiff. Id. at *2. The Second Circuit relied on the fact that the character at issue was not named after the plaintiff, and although based partially on the plaintiff, was in fact a composite character based on a combination of three different real individuals. Id. at *2.
The fact that the character in The Wolf of Wall Street had a fictitious name and only shared some of the plaintiff's characteristics was also the basis of the district court's earlier decision from September 30, 2015, to dismiss the plaintiff's right of publicity claim under New York law. Greene, 138 F. Supp. 3d at 232‒33 ("[M]erely suggesting certain characteristics of the plaintiff, without literally using his or her name, portrait, or picture, is not actionable under the statute." (quoting Allen v. Nat'l Video, Inc., 610 F. Supp. 612, 621 (S.D.N.Y. 1985)).
Based on a True Story (and No Composite Character)—Barbash v. STX Financing
An ongoing case arising from the 2019 film Hustlers—similarly billed as "inspired by a true story"—may shed further light on the scope of protection afforded to the use of characters that are based on modifications to, or composites of, real-life individuals. In this case, Barbash v. STX Financing, LLC, the plaintiff, has attempted to distinguish Greene as involving a "composite character fictionalized beyond recognition," and has argued that the defendants should face liability because, rather than creating a "composite fictional character," they "depicted plaintiff as accurately as possible." Plaintiff's Memorandum of Law in Opposition of Defendants' Motion to Dismiss Plaintiff's Amended Complaint at 10‒11, Barbash v. STX Fin., LLC, No. 20-cv-00123-DLC (S.D.N.Y. filed June 29, 2020).
The defendants in Barbash, on the other hand, compare their case to Greene, and suggest that they can avoid liability because they did not use the plaintiff's name or literal likeness, regardless of the extent to which the Hustlers character shares certain characteristics with the plaintiff or the extent to which it is clear that the plaintiff is being depicted in the film. Defendants' Memorandum of Law in Support of their Motion to Dismiss Plaintiff's Amended Complaint at 9‒11, Barbash, No. 20-cv-00123-DLC (S.D.N.Y. filed May 29, 2020).
Depictions that are too similar, and thus not transformative, can violate an individual's right of publicity.
As of the date of this article, the Barbash court has yet...
