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June 09, 2023 Feature

In a Pickle?: Vetting and Litigating Docudramas

By Jean-Paul Jassy

Docudramas are not new. And neither is the cluster of legal claims that often mushroom from a good story that blends fact and fiction. The docudrama is a tricky mix of legal and practical conundrums setting traps for even the most well-vetted works, but, thankfully, protection exists for even the most thinly stretched portrayals. Ultimately, it is clear that docudramas rightfully deserve and get robust protection under the First Amendment.

We all generally recognize that a docudrama is a production, usually a movie or television program, that is based on or borrows from real life but takes liberties to fill in—or invent—dialogue, characters, scenes, and story transitions. A film meant to present a historical record is better labeled a documentary, hopefully interesting or moving, but usually a little dry. A good docudrama, on the other hand, breathes with life, context, and dynamism. And that dynamism, that element of fictionalization, frequently has led, does lead, and will lead to all manner of lawsuits.

The question is how to apply well-hewn defamation, privacy, publicity, and copyright jurisprudence to a genre that simultaneously combines concededly false elements with very real facts about very real—and sometimes very pissed-off—people.

Identifying the Docudrama

Docudramas have been around for centuries, although we didn’t always call them that. Shakespeare’s histories are basically all docudramas. There is no real evidence that Caesar said “Et tu, Brute?” after he was betrayed by Brutus, but the line certainly adds to the story.1 We understand that the play Julius Caesar has kernels of accepted fact—Caesar really was assassinated by a group of senators, including Brutus—surrounded by brilliant fable and dialogue.

Twenty-eight years ago, the Ninth Circuit Court of Appeals, in Partington v. Bugliosi, expressed confidence that viewers are readily familiar with docudramas, which “often rely heavily upon dramatic interpretations of events . . . in order to capture and maintain the interest of their audience,” and audiences understand that “such programs are more fiction than fact.”2 More recently, California’s intermediate appellate court held that “[v]iewers are generally familiar with dramatized, fact-based movies and miniseries in which scenes, conversations, and even characters are fictionalized and imagined.”3

The Problems with Docudramas

Shakespeare was one of the first to use the expression “in a pickle.”4 Without the benefit of the First Amendment, that’s exactly what a docudrama would be: a legal pickle. The California Court of Appeal described the docudramatist’s dilemma in DeHavilland v. FX Networks, LLC: “if they portray a real person in an expressive work, accurately and realistically without paying that person, they face a right of publicity lawsuit. If they portray a real person in an expressive work in a fanciful, imaginative—even fictitious and therefore ‘false’ way—they face a false light lawsuit if the person portrayed does not like the portrayal.”5

This is where the dilemma begins for producers of docudramas, clearance lawyers vetting docudramas, and litigators defending docudramas. Where a work is admittedly fictional, at least in part, what do we do about the falsity element of defamation and false light claims? If it is fictional, isn’t it admittedly false? Should we have to break the docudrama into component parts—accurate and dramatized? If so, how do we communicate to the viewer what is true and what is false without a complete breakdown in the narrative flow of the work? And what about actual malice, especially because most docudramas are about public figures and public officials? How do you get around “knowledge of falsity” when you know that part of your work is invented? And if the work is not meant to be purely factual or newsworthy, should a subject of a docudrama have a right of publicity claim?

There is a lot to consider.

It may come as a surprise, but the best rule of thumb is to approach a docudrama the same way as any other publication. That means evaluating the key elements of potential defamation, false light, right of publicity/misappropriation of likeness, and copyright claims. But some special considerations may arise for docudramas.

Defamation, False Light, and the Docudrama

Is the Docudrama “Of and Concerning” the Plaintiff?

The first stop is the “of and concerning” element—i.e., is a person who may claim harm identified or identifiable in the docudrama? Oftentimes, this is an easy call—a character in the docudrama is expressly based on a real person. If that is the case, the “of and concerning” element is likely not in play.

The more complicated scenarios come in other contexts. For example, docudramas sometimes use composite characters—a blend of real people into one character to carry the narrative forward. Sometimes one of the real persons associated with the composite character will sue, but that is a difficult road for a plaintiff. For example, in Greene v. Paramount Pictures Corp., the Second Circuit Court of Appeals held that “no reasonable viewer” of the docudrama film The Wolf of Wall Street would understand a character who was meant to be a composite of three people with a fictitious name and a different job than the plaintiff could be understood to be about the plaintiff.6 Other times, a docudrama will make efforts—albeit occasionally insufficient efforts—to mask a character’s association with a real person.

If there is some question whether the plaintiff is identifiable, the test is generally the same in the docudrama context as it would be in a purely nonfiction context. Courts will look to a variety of identifiable traits, most commonly a character’s name, physical appearance, ethnicity, geographic location, occupation, etc., and the overall context of the program or film to determine whether a reasonable person would match the character to the plaintiff.

For example, in Polydoros v. Twentieth Century Fox Film Corp., the 40-year-old plaintiff claimed that a bespectacled 10-year-old character portrayed him in the coming-of-age film The Sandlot.7 The film did not purport to be factual, but the plaintiff’s name was similar to the character’s name, both lived in a similar area, and the plaintiff had been childhood schoolmates with the screenwriter/director.8 Nevertheless, the court held that “no sensible person” would see the film as a true depiction of the plaintiff: “No person seeing this film could confuse the two. . . . [T]he rudimentary similarities in locale and boyhood activities do not make ‘The Sandlot’ a film about appellant’s life. This is a universal theme and a concededly fictional film.”9 Perforce the court concluded that The Sandlot is not really a docudrama at all because it was not meant to be a blend of fact and fiction.

In another case, Tamkin v. CBS Broadcasting, Inc., the plaintiffs had identical names to characters in casting synopses but different last names in the ultimate broadcast of an episode of the fictional television show CSI: Crime Scene Investigation.10 The plaintiffs also had the same profession as the characters (real estate agents) but in different locations (Los Angeles versus Las Vegas). Again, the court concluded that “no reasonable person” would make the connection, even as to the casting synopses.11

Some jurisdictions, such as New York, have used an even higher standard. In Carter-Clark v. Random House, Inc., the court held that the character in a book had to be “so closely akin” to a real person that a reader “would have no difficulty linking the two.”12 In Carter-Clark, the court held that the account in a fictional book (loosely based on the rise of Bill Clinton) about a librarian who had an affair with a presidential candidate was not close enough to a real librarian who had met with Clinton. Thus, “[a]lthough the book was inspired by real-life personalities and events,” the court held, “it was still fiction, and must be analyzed as such in this libel suit.”13

And in Springer v. Viking Press, New York’s intermediate appellate court used the “so closely akin” test to reject a libel-in-fiction claim, holding that similarities in name, physical height, weight, build, incidental grooming habits, and recreational activities were insufficient to establish the “of and concerning” element in light of the “profound” dissimilarities “both in manner of living and in outlook.”14

In Batra v. Wolf, however, a television network faced a suit in New York for a Law & Order “ripped from the headlines” episode about judicial corruption involving a character with the same name, ethnicity, and physical appearance as the plaintiff. The court noted that the similarity between the plaintiff and the character was “complete . . . in significant ways” and ruled that the case could proceed.15

In short, it is not easy for a plaintiff to establish the “of and concerning” element as to a work that is at least partially fiction. Something at least above passing similarities is required, and the “so closely akin” test from New York provides even more fulsome protection under the First Amendment.

Does the Docudrama Convey a False Statement of Fact About the Plaintiff?

Even if there is a sufficient connection between the plaintiff and the docudrama’s character, the plaintiff still must establish the existence of a false statement of fact. This constitutionally based rule applies in the context of defamation and false light claims.16 Indeed, the Supreme Court explained that “an acknowledgment that [a] work is so-called docudrama or historical fiction . . . might indicate that . . . quotations should not be interpreted as the actual statements of the speaker to whom they are attributed.”17

Consequently, docudramas get a large umbrella of protection. “Docudramas,” the Partington court held, are entitled to “substantial latitude” under the First Amendment.18 In Partington, the Ninth Circuit held that viewers “would be sufficiently familiar with this [docudrama] genre to avoid assuming that all statements within them represent assertions of verifiable facts. To the contrary, most of them are aware by now that parts of such programs are more fiction than fact.”19 The court explained that “the general tenor of the docudrama also tends to negate the impression that the statements involved represented a false assertion of objective fact,” as docudramas “often rely heavily upon dramatic interpretations of events and dialogue filled with rhetorical flourishes.”20

And the District of Columbia Circuit Court of Appeals recently held in Khodorkovskaya v. Gay that a fictional play, Kleptocracy, although inspired by historical events, employed various fantastical dramatic devices (such as Vladimir Putin talking to a stuffed tiger), underscoring its fictional nature.21 In that context, the court rejected a false light claim, holding that no reasonable audience member would understand the play to communicate that the plaintiff was a prostitute or murderer even though that is how her character was portrayed in the play.22

It is tempting to believe that courts will treat all docudramas—which, by definition, are not meant to be strictly factual renditions—as not capable of conveying statements of fact. And perhaps they should. Recent decisions caution, however, that a defendant may not always reliably point to the general tenor of the docudrama as fictional in order to avoid liability.

The case of Gaprindashvili v. Netflix, Inc. involved the television series The Queen’s Gambit about the life of a fictional female chess player.23 The series was not based on real people or real events, but it briefly referenced a real female chess champion, Nona Gaprindashvili, and suggested that she, unlike the program’s protagonist, had not faced (and therefore had not defeated) men in her career.24 But Gaprindashvili had faced and defeated many men in her chess-playing career, so she sued alleging that the series misrepresented her achievements.

The defendant argued that the series was entirely fictional, which any reasonable viewer would understand.25 But the federal district court in Los Angeles ruled that it could not ignore that the program referenced a real person by name, referenced her real career, and incidentally showed an actor who supposedly resembled the plaintiff. The court stated that it was “not aware of any cases precluding defamation claims for the portrayal of real persons in otherwise fictional works.” “On the contrary,” the court held, “the fact that the Series was a fictional work does not insulate [defendant] from liability for defamation if all the elements are otherwise present.”26

Another case, Fairstein v. Netflix, Inc., involved a docudrama series, When They See Us, concerning the “Central Park Five” sexual assault case.27 The federal district court in New York held that, because the series had famous actors playing real people, popular music, and stylized visual sequences, the average viewer would not take it to be a strictly factual recitation, “and would instead understand it as a dramatization drawn from historical events.”28 The court held that the series’ commentary on the merits of the prosecution’s case were a matter of opinion, but that statements regarding whether the plaintiff (as a prosecutor) concealed DNA evidence from the defense was “actionable mixed opinion” with a “precise meaning” “capable of being proved or disproved,” and, even in the context of an otherwise dramatic work, the average viewer could reasonably believe that the depictions on that particular subject were based on undisclosed facts.29

Two circuit cases, Partington and Khodorkovskaya, offer robust protection for dramatized works. But a cautionary lesson from Gaprindashvili and Fairstein is that a trial court may conclude that what it views as genuine assertions of fact, even in an otherwise fictionalized or highly dramatized work, may give rise to a defamation claim if the other elements are met.

The “statement of fact” element also cannot be satisfied by a plaintiff in the context of parodies and satires, whether “dramatic” or not. For example, in the seminal case of Hustler Mag., Inc. v. Falwell, the Supreme Court protected an advertisement parody (and it was specifically labeled an “ad parody”) suggesting that the Rev. Jerry Falwell’s first sexual experience was in an outhouse with his own mother.30 The court explained that the First Amendment barred liability for the ad parody that “could not reasonably have been interpreted as stating actual facts” about Falwell.31

In Pring v. Penthouse Intern., Ltd., an adult magazine ran a fanciful article describing Miss Wyoming as being able to perform oral sex such that she could make a man levitate, which she did at a Miss America beauty pageant.32 The jury decided that the article was definitely about (“of and concerning”) the plaintiff.33 And the trial court “decided that the story generally was not fiction,” but the Tenth Circuit Court of Appeals protected the magazine, holding that the challenged portion of the article obviously did not convey real events, and the fact that the magazine did not label the article as humor or fiction did nothing to diminish its constitutional protection: “The story is a gross, unpleasant, crude, distorted attempt to ridicule the Miss America contest and contestants. It has no redeeming features whatever. There is no accounting for the vast divergence in views and ideas. However, the First Amendment was intended to cover them all.”34

What Do We Do with Actual Malice in Docudramas?

In some cases, the producer of a docudrama may be genuinely ignorant that a portion of the film’s or program’s story is false, in which case the actual malice rule should operate the same as it would for any other type of publication. Indeed, the public figure or public official plaintiff must show, with clear and convincing evidence, that the defendant acted with knowledge of falsity or reckless disregard for the truth, and where the plaintiff fails to make the requisite showing, then the defamation claim must fail.35

For example, in Lovingood v. Discovery Communications Inc., the Eleventh Circuit Court of Appeals held that the plaintiff had not demonstrated actual malice based on supposedly altered quotations in a docudrama about the space shuttle Challenger disaster because there was insufficient evidence of knowledge of falsity, reckless disregard for the truth, or willful blindness.36 And, in an older case, Davis v. Costa-Gavras, a federal district court explained that “[s]elf-evidently a docudrama partakes of author’s license—it is a creative interpretation of reality—and if alterations of fact in scenes portrayed are not made with serious doubts of truth of the essence of the telescoped composite, such scenes do not ground a charge of actual malice.”37 And, in one of the first “docudrama” cases, the Sixth Circuit Court of Appeals held that a defendant could reasonably rely on a court record to show that it did not have actual malice that the portrayal of plaintiff in a film was knowingly or recklessly false.38

But it gets trickier when, as often happens, the defendant knows that some portions of the docudrama are false or fictionalized. Of course, the previously discussed arguments may apply—e.g., the docudrama is not really about the plaintiff or it is not stating verifiably false facts about the plaintiff. But, if those arguments do not hold, the producer may still rely on the benefits of the constitutionally based actual malice rule to avoid liability.

The way to resolve the tension between actual malice’s knowledge of falsity (or reckless disregard for the truth) and the fictionalization inherent in docudramas is to require clear and convincing evidence that the defendant intended to create a false impression when presenting the false or fictionalized information. This parallels the court’s approach in Hoffman v. Capital Cities/ABC, Inc., where the Ninth Circuit held, in applying the actual malice standard, that the plaintiff had to prove that the defendant intended to create a false impression when superimposing plaintiff actor Dustin Hoffman’s face on someone else’s body in a photo.39

Similarly, in DeHavilland, the court noted that, of course, “fiction is by definition untrue,” therefore the plaintiff must show that the defendant intended its portrayal of plaintiff in a docudrama to be taken as a false assertion of fact, which the plaintiff in that case did not show.40

This is all consistent with the Supreme Court’s holding in Time, Inc. v. Hill, a false light case concerning a magazine article about a novel and Broadway play inspired by a real-life hostage situation, concluding that the actual malice standard required some literary license in describing the underlying hostage event.41

Although these principles offer significant insulation from liability in litigation, it is perilous to rely solely on a lack of actual malice in the vetting process. Unless a complaining plaintiff fails to adequately plead actual malice, which every federal circuit to address the issue has held to a high pleading standard,42 it can be a fairly arduous road through discovery, summary judgment, and possibly trial to argue that a plaintiff has failed to establish actual malice with clear and convincing evidence.43

Misappropriation of Likeness and Right of Publicity

Many states have statutory carve-outs from their right of publicity laws exempting expressive works such as films and television programs.44 But regardless of any statutory carve-outs, the First Amendment limits right of publicity and misappropriation of likeness claims.

It is beyond dispute that the First Amendment protects motion pictures and entertainment.45 By extension, the First Amendment protects the depiction of real persons in nonfiction accounts (even outside of news accounts).46 It also protects the depiction of real persons in fictional stories such as the use of the “name, likeness and personality” of actor Rudolph Valentino “in a fictionalized film which did not accurately portray his life.”47 And it protects the depiction of real persons in docudramas.48 The protection does not turn on the label for the work. The Fifth Circuit Court of Appeals held in Matthews v. Wozencraft that it is “immaterial” whether a work is labeled “historical” or “fictional” because it gets protection under the First Amendment either way.49

Stepping beyond the content of the docudrama itself, courts consistently hold that advertising and promotional materials attendant to a protected work, such as a docudrama, are also protected speech.50

Copyright Issues

Shakespeare’s tragedy Romeo and Juliet could fairly be called a docudrama. Shakespeare based it on a poem, The Tragicall History of Romeus and Juliet, written in 1562 by Arthur Brooke, who, in turn, lifted it from a story by an Italian named Matteo Bandello.51 Varying accounts suggest that the underlying real basis for the story of the star-crossed lovers comes from Vicenza’s Luigi da Porto and his love Lucina, or the story of Siena’s Mariotto and Ganozza, which author Masuccio Salernitano insisted was true, or perhaps it stems from Portugal’s doomed romantics Pedro and Inês.

In any event, we know that facts cannot be copyrighted.52 So, to the extent a docudrama is based on facts, copyright protection would extend only to the expressive portions of an underlying work, including, potentially, their selection and arrangement. In Miller v. Universal City Studios, Inc., the Fifth Circuit Court of Appeals held that a book author’s research alone, unearthing underlying facts, would not give rise to a copyright claim against the producers of a docudrama on the same subject.53

The fair use doctrine may also be invoked in the docudrama context. For example, in Fioranelli v. CBS Broadcasting Inc., the court found a transformative fair use in the relatively short use of a photojournalist’s copyrighted footage as part of a docudrama depicting characters’ reactions to the true story of two police officers who were trapped in the rubble following the terrorist attacks of September 11, 2001.54

Using Disclaimers

Many docudramas alert viewers that the film or program is “based on a true story” or, as the clever disclaimer in Netflix’s docuseries Inventing Anna announced, “This whole story is completely true. Except for all the parts that are totally made up.” Although many courts, such as the Ninth Circuit in Partington, have long held that viewers are very familiar with the docudrama genre, these disclaimers can help remind viewers that what they are about to watch (or just watched) has been fictionalized to at least some degree.

In Porco v. Lifetime Entertainment Services, LLC, New York’s intermediate appellate court found it significant that “the film makes no effort to present itself as unalloyed truth or claim that its depiction of plaintiffs was entirely accurate, instead alerting the viewer at the outset that it is only ‘[b]ased on a true story’ and reiterating at the end that it is ‘a dramatization’ in which ‘some names have been changed, some characters are composites and certain other characters and events have been fictionalized.’”55 Similarly, in Lovingood, the docudrama about the space shuttle Challenger disaster began with a card reading: “This is a true story. . . . Some scenes have been created for dramatic purposes.”56

Other courts, however, have held that a disclaimer is not a silver bullet to avoid liability. For example, in Gaprindashvili, the court stated that it would consider the program’s disclaimer but that it was not dispositive.57 The claim in that case was allowed to proceed even though the program was essentially entirely fictional. And some courts have held that a disclaimer is not helpful if the work otherwise appears to be entirely factual. In the Illinois case of Bryson v. News America Publications, Inc., the plaintiff with the same last name from the same town as a character could maintain a defamation claim even though the work at issue appeared in a magazine’s “fiction” section.58

In Sarver v. Chartier, the court rejected the contention that a fictional character in the Oscar-winning film The Hurt Locker was meant to depict the plaintiff in part because the name of the character was different than the plaintiff’s name and because the beginning of the film “contains a specific disclaimer that the film is a work of fiction.”59 In Greene, the Second Circuit gave weight to a standard disclaimer that appeared at the end of the film.60

In another case, however, a district court gave short shrift to a “based on actual events” disclaimer that passed over the screen “very quickly” at the end of the credits of a docudrama, noting also that the DVD cover “describes the film as ‘the extraordinary true story of the greatest filly racehorse of all time,’ without using qualifying terms such as ‘based on’ or ‘adapted from.’”61

Although not necessarily a silver bullet to defeat claims, it is clear that disclaimers can still be useful, particularly if they are presented prominently, preferably at the front of the program or film, and it is clear what the disclaimer is communicating to the viewer. For example, in Mosack Fonseca v. Netflix, Inc., the court gave significant weight to a disclaimer: “The Court finds no reasonable viewer of the Film would interpret the Film as conveying ‘assertions of objective fact,’ particularly given the statement at the beginning of the Film ‘BASED ON ACTUAL SECRETS’ which sets the stage and the disclaimer at the end of the Film that states the Film is fictionalized for dramatization and is not intended to reflect any actual person or history.”62


Docudramas are rightfully accorded a significant degree of protection under the First Amendment so that stories—even those that involve, include, or relate to real people and real events—can be told in an engaging, compelling, and thoughtful way. As a legal baseline, docudramas should be approached the same way as any other expressive or nonfiction publication. Think about the elements. Think about the classic defenses, burdens of proof, and burdens of persuasion. Remember that, if anything, docudramas often get more protection than other types of works because viewers have understood for centuries—going back to Shakespeare’s Globe Theatre and before—that docudramas are not meant to be taken literally in every word and scene. Ultimately, makers and defenders of docudramas have a host of tools and arguments to get out of most any legal pickle.


1. William Shakespeare, Julius Caesar act 3, sc. 1.

2. 56 F.3d 1147, 1155 (9th Cir. 1995).

3. De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 866 (2018).

4. William Shakespeare, The Tempest act 5, sc. 1.

5. 21 Cal. App. 5th at 870–71.

6. 813 F. App’x 728, 731 (2d Cir. 2020).

7. 67 Cal. App. 4th 318 (1997).

8. Id. at 320–21.

9. Id. at 323, 326.

10. 193 Cal. App. 4th 133, 138–40 (2011).

11. Id. at 146.

12. 17 A.D.3d 241 (N.Y. Sup. Ct. App. Div. 2005).

13. Id. at 241.

14. 90 A.D.2d 315, 320 (N.Y. Sup. Ct. App. Div. 1982).

15. No. 116059/04, 2008 N.Y. Misc. LEXIS 1933, at *236 (Sup. Ct. N.Y. Cnty. Mar. 14, 2008).

16. See Milkovich v. Lorain J. Co., 497 U.S. 1, 19–20 (1990).

17. Masson v. New Yorker Mag., Inc., 501 U.S. 496, 512–13 (1991).

18. Partington v. Bugliosi, 56 F.3d 1147, 1154 (9th Cir. 1995).

19. Id. at 1155.

20. Id. at 1154–55; see also Brodeur v. Atlas Ent., Inc., 248 Cal. App. 4th 665, 681 (2016) (rejecting defamation claim, holding that the “general tenor” of the film, “farcical nature” of a particular scene, and “ditzy nature of the character uttering the allegedly defamatory statement, all indicate that an audience would not expect anything [that character] says to reflect objective fact”).

21. 5 F.4th 80, 83 (D.C. Cir. 2021).

22. Id. at 85–88.

23. Case No. 2:21-cv-07408-VAP-SKx, 2022 WL 363537 (C.D. Cal. Jan. 27, 2022).

24. Id. at *1–*3.

25. Id. at *5.

26. Id. at *6.

27. 553 F. Supp. 3d 48 (S.D.N.Y. 2021).

28. Id. at 59.

29. Id. at 71–75.

30. 485 U.S. 46, 48 (1988).

31. Id. at 50–57.

32. 695 F.2d 438, 441 (10th Cir. 1982).

33. Id. at 442.

34. Id. at 442–43.

35. New York Times Co. v. Sullivan, 476 U.S. 254 (1964); Curtis Publ. Co. v. Butts, 388 U.S. 130 (1967).

36. 800 F. App’x 840, 848–51 (11th Cir. 2020).

37. 654 F. Supp. 653, 658 (S.D.N.Y. 1987).

38. Street v. Nat’l Broad. Co., 645 F.2d 1227, 1236–37 (6th Cir. 1981).

39. 255 F.3d 1180, 1188–89 (9th Cir. 2001).

40. DeHavilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 869–70 (2018).

41. 385 U.S. 374, 389–97 (1967).

42. Tah v. Global Witness Publ., Inc., 991 F.3d 231, 243–49 (D.C. Cir. 2021); Nelson Auto Ctr., Inc. v. Multimedia Holdings Corp., 951 F.3d 952, 958 (8th Cir. 2020) (“Every circuit that has considered the matter has applied the Iqbal/Twombly standard and held that a defamation suit may be dismissed for failure to state a claim where the plaintiff has not pled facts sufficient to give rise to a reasonable inference of actual malice.”); Michel v. NYP Holdings, Inc., 816 F.3d 686, 701–702 (11th Cir. 2016); Biro v. Conde Nast, 807 F.3d 541, 544–45 (2d Cir. 2015); Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 377–78 (4th Cir. 2012); Schatz v. Republican State Leadership Comm., 669 F.3d 50, 58 (1st Cir. 2012).

43. Defendants can, and often do, successfully attack other elements such as falsity and defamatory meaning, but those are not explored in detail here because they are infrequently the subject of differential treatment simply because the underlying work is a docudrama.

44. See, e.g., Cal. Civ. Code § 3344.1(a)(2) (an “audiovisual work, radio, or television program . . . shall not be considered a product, article of merchandise, good, or service if it is fictional or nonfictional entertainment, or a dramatic . . . work”); 765 Ill. Comp. Stat. 1075/35(b)(1) (the “Act does not apply to . . . film, radio, television, or other audio, visual or audio-visual work”); Ind. Code § 32-36-1-1(c) (statute “does not apply to . . . film, radio, or television programs”); Nev. Rev. Stat. § 597.790(2)(d) (no consent is required under the statute for a “use in an attempt to portray, imitate, simulate or impersonate a person in a . . . film, or a radio, television, or other audio or visual program . . .”); Ohio Rev. Code Ann. § 2741.09(A)(1)(a) (statute “does not apply to . . . a dramatic work, fictional work, historical work, audiovisual work . . . regardless of the media in which the work appears . . .”); Tex. Prop. Code Ann. § 26.012(a) (use of a deceased person’s name or likeness in “film, radio program, or television program” is permitted); Wash. Rev. Code § 63.60.070(2) (statute “does not apply to . . . film, radio, online or television program . . .”).

45. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952).

46. See, e.g., Rosemont Enters., Inc. v. Random House, Inc., 294 N.Y.S.2d 122, 129 (Sup. Ct. 1968) (factually based biography of Howard Hughes).

47. See, e.g., Guglielmi v. Spelling-Goldberg Prods., 603 P.2d 454, 456–62 (Cal. 1979) (Bird, C.J., concurring); see also Hicks v. Casablanca Records, 464 F. Supp. 426, 430–33 (S.D.N.Y. 1978) (dismissing right of publicity claim stemming from a fictionalized biography—and movie—of deceased author Agatha Christie).

48. See, e.g., Seale v. Grammercy Pictures, 949 F. Supp. 331, 334–37 (E.D. Pa. 1996) (rejecting right of publicity claim based on a docudrama about a founder of the Black Panther Party), aff’d without opinion, 156 F.3d 1225 (3d Cir. 1998); Ruffin-Steinback v. de Passe, 82 F. Supp. 2d 723, 726, 728–31 (E.D. Mich. 2000), aff’d, 267 F.3d 457, 461–62 (6th Cir. 2001) (foreclosing publicity rights liability for television docudrama mixing factual and dramatized elements of a story about The Temptations); Donahue v. Warner Bros. Pictures Distrib. Corp., 272 P.2d 177, 184 (Utah 1954) (dramatized biographical film not subject to publicity rights law).

49. 15 F.3d 432, 439–40 (5th Cir. 1994).

50. See, e.g., Porco v. Lifetime Ent. Servs., LLC, 150 N.Y.S.3d 380, 387 (Sup. Ct. App. Div. 2021); see also Cher v. Forum Int’l, Ltd., 692 F.2d 634, 639 (9th Cir. 1982).

51. Bill Bryson, Shakespeare, at 99 (2009).

52. Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991) (“all facts—scientific, historical, biographical, and news of the day . . . are part of the public domain available to every person”).

53. 650 F.2d 1365, 1368–72 (5th Cir. 1981).

54. 551 F. Supp. 3d 199, 240–242 (S.D.N.Y. 2021).

55. 150 N.Y.S.3d 380, 386 (Sup.Ct. App. Div. 2021).

56. Lovingood v. Discovery Commc’ns Inc., 800 F. App’x 840, 847 (11th Cir. 2020).

57. Gaprindashvili v. Netflix, Inc., Case No. 2:21-cv-07408-VAP-SKx, 2022 WL 363537, at *6 (C.D. Cal. Jan. 27, 2022).

58. 672 N.E.2d 1207 (Ill. 1996).

59. Sarver v. Hurt Locker LLC, No. 2:10-CV-09034-JHN, 2011 WL 11574477, at *8 (C.D. Cal. Oct. 13, 2011), aff’d sub nom. Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016).

60. Greene v. Paramount Pictures Corp., 813 F. App’x 728, 732 (2d Cir. 2020).

61. Thoroughbred Legends, LLC v. The Walt Disney Co., No. 1:07-CV-1275-BBM, 2008 WL 616253, at *13 (N.D. Ga. Feb. 12, 2008).

62. Mossack Fonseca & Co., S.A. v. Netflix Inc., No. CV 19-9330-CBM-AS(X), 2020 WL 8510342, at *4 (C.D. Cal. Dec. 23, 2020).

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By Jean-Paul Jassy

Jean-Paul Jassy is a founder and partner of Jassy Vick Carolan LLP. He practices nationwide in the areas of First Amendment, entertainment, and media law.