Why You Can't Really Say, It's Only a Movie

by John Aquino on 01/19/12

I have written a book and a number of articles on the legal issues surrounding fictionalizations that occur in fact-based films. The issue come up when people see themselves or family members portrayed in films and feel the portrayals are false. This has happened to the middleweight boxer Joey Giardello, who watched the movie Hurricane and saw himself portrayed as a pudgy fellow being beaten up by Hurricane Carter but winning the fight because the judges were racists. It happened to the family of Thomas E. Dewey, the late governor of New York and Republican presidential candidate, whose family saw him portrayed in the movie Hoodlum as a lawyer on the take. The Dewey family learned that libel laws protect reputations, a reputation is personal to that individual, and when he or she dies the ability to sue for libel dies with them. Giradello, however, did sue, and the fimmakers settled.

When I have given presentations or workshops on the topic, someone usually asks, basically, What's the big deal? Everybody knows movies make things up. Nobody is going to take what they say seriously.

The answer is, it's not that simple. Reputations are sullied in many ways, by rumors, for example, which fly in the air and stick in the mind. How do we assimilate information? We're told things, some of them we remember, some we do not, and even the ones we remember we may not recall where we got the information.

As an attorney, I was once reviewing a book manuscript for an author who was dealing with a battle that still exists today--whether the Bible or science should govern the teaching in schools of how the universe was created. The author wrote that this is not a new concern, that everyone remembers how in 1925 John Scopes, a teacher in Dayton, Tennessee, was arrested in class when he was teaching about evolution and put in jail for violating the Butler Act, which prohibited the teaching of evolution in schools. I wrote in the manuscript's margin, "You're remembering the movie!"

The movie was Inherit the Wind, which was based on a play of the same name. The playwrights had fictionalized the events of 1925, readily admitted it, and even changed the names of the teacher and his attorney and all the other characters for the play. Scopes was never arrested and never spent a night in jail. The ACLU had announced that it would finance a challenge to the Butler Act, and Scopes volunteered to be the defendant in the trial while admitting that he did not recall teaching evolution although the book he used in class mentioned it. When William Jennings Bryant, who would assist the prosection in Scopes' trial, came to town, there was a big banquet and Scopes was invited to attend.

The movie, however, begins with a scene where Dick York, playing the Scopes character, is arrested and put in jail. The manuscript's author may have known at one time that the play and film were fictionalized, but obviously didn't remember that. What the author did remember was the scene of the teacher being arrested, one picture being worth a thousand words.

Film images of very powerful things. We remember them. And most of the time it is not as easy to distinguish fact from fiction in movie portrayals. The filmmakers may not change the character names--they didn't in the Hurricane--and while they may run a disclaimer it usually says that some characters and events have been fictionalized, leaving the audience to guess which ones, and it usually runs in small print at the end of the movie's credits, which nowadays run for nine minutes. Very few people stay to read it.

The movie may be the only information audience members will have about the person being portrayed, and, barring someone telling them otherwise, they will take it away with them.

When Giardello sued the makers of Hurricane, they quickly settled. As part of the settlement, a disclaimer was put at the beginning of the DVD release, and Norman Jewison, the film's director, spoke on one of the tracks of the DVD and said that of course Giardello had really won the fight but that Jewison was using the fight as a metaphor for all of the racism Hurricane Carter had experienced.

The problem was, the audience members had no way of knowing they were watching a metaphor.

And this is why the topic is important.

Copyright 2012 by John T. Aquino. All posts do not constitute legal advice and are the opinions of the author presented for educational purposes.