Mark has once again achieved a brief moment of fame on the big screen in Hollywood. Disney recently released Ralph Breaks the Internet, a sequel to its “Wreck-it Ralph movie,” and once again, Litwak’s Video Arcade is included in the movie.  One of the film’s writers was inspired to give the arcade this name after attending one of Mark’s lectures at Cal-Arts many years ago. In the film, Mr. (Stan) Litwak is the friendly owner and operator of Litwak’s video arcade. Released during Thanksgiving the animated film has already grossed 285 million at the box office. More about the character:
http://disney.wikia.com/wiki/Stan_Litwak

 
Hollywood is a strange place with its own customs and practices. One custom that often confuses newcomers is when a studio executive or producer tells them that he or she would love to read their script but can only do so if it comes in from an attorney or an agent. The caller then seeks to obtain such representation because they think the intended recipient is genuinely interested in reading their script. Unfortunately, that is usually not the case. The executive is just looking for a way to get off the call without offending the caller. They know most novices do not have representation, so this is a diplomatic way of saying, “No thanks.”

The truth is that most studio executives do not want to spend time reading material that comes over the transom from people who may not have experience or expertise in the craft of storytelling. Studio executives believe that 99% of the time such material from novice writers is not worthy of consideration.  Since there are plenty of scripts to consider from the major talent agencies, there is little need to consider work from beginners trying to break into the industry.

Executives are also concerned about being sued for story theft.  They are afraid that if they read a script and pass on it, and later develop something similar, they will open themselves to being sued.  There have certainly been many such suits filed and more than a few of them have been found to be without merit.

Consequently, most studio executives and producers will not accept unsolicited submissions, especially from persons they do not know and those without a track record. Consequently, it is very difficult for newcomers to the entertainment industry to have their scripts read by industry insiders if they do not have representation. In the rare instance that an executive is willing to accept a script from a novice writer, the writer is often asked to sign a submission release or waiver making it more difficult for the writer to sue for theft of their material.
​
There is no law that requires that the material be submitted by an agent or attorney.  You can be sure that if George Clooney calls Universal, they will be delighted to receive material directly from him. In fact, they will send over a messenger to pick up the script. The fact is, a filmmaker with a successful track record can get a commitment just by pitching an idea for a film because the studio wants to work with that person.
 
Even if an unknown writer can submit a script to a studio, the chances of a bare script being given serious consideration is not likely. That is because nowadays studios and networks often prefer packaged projects. They want a star and director attached. When agencies submit scripts, they often are packaged with other elements which make the project more desirable in the eyes of a studio.
 
So then how does an unknown writer break into the industry?  There is no easy answer. But often you break in because of a relationship with someone who already has a foot in the industry, such as your friend from film school or a producer who has access. Or if you produce something yourself that is so exceptional that it receives attention at a film festival or with critics.  
 
Going the independent route has become more viable because the cost of production has gone down. In the days when making a film meant purchasing film stock and developing it, you needed some serious cash to get into the game.  Nowadays, talented filmmakers can make films with low cost digital cameras, edit them on a computer, and then upload it to YouTube. For an enterprising person willing to hustle, a film can be made for very little. 

Stormy Daniels aka Stephanie Clifford has had her defamation case against President Trump tossed out of court on the grounds that Trump’s statements were “rhetorical hyperbole.” In defamation law, the phrase “rhetorical hyperbole” encompasses a variety of communications, including epithets, insults, and name-calling, all of which may be protected expression. So what exactly is “rhetorical hyperbole” and how does this doctrine insulate one from making statements that might otherwise be considered defamatory?

To recap the circumstances surrounding this case, Clifford is a porn star who had an affair with Donald Trump. In May of 2011, she agreed to cooperate with In Touch Magazine in connection with an article about her relationship with Mr. Trump. She agreed to speak to the magazine after her ex-husband approached the magazine without her approval. Several weeks later she says she was approached by a man who threatened herself and her daughter. The man said, “Leave Trump alone. Forget the story.”

Ms. Clifford later worked with a sketch artist to render a sketch of what the man who made the threat looked like. Ms. Clifford released the sketch on April 17, 2018. The next day, Mr. Trump, from his Twitter account, posted a purportedly false statement regarding Ms. Clifford, and her account of the threatening incident.  Mr. Trump's tweet stated: "A sketch years later about a nonexistent man.  A total con job, playing the Fake News Media for Fools (but they know it)!"

Clifford filed a defamation lawsuit against Trump.  She argues that the tweet attacks the truth of her account of the threatening incident and suggests that she is falsely accusing an individual of committing a crime against her. In other words, Trump is saying she “is a liar, someone who should not be trusted, that her claims about the threatening encounter are false, and that she was falsely accusing the individual depicted in the sketch of committing a crime, where no crime had been committed."

Ms. Clifford alleges that Mr. Trump acted with actual malice in issuing the tweet because he knew the falsity of his statement because the person who threatened her acted at the direction of Mr. Trump or Mr. Trump's attorney, Michael Cohen.

If the lawsuit was allowed to proceed, Trump could be compelled to testify under oath which might create a dilemma for him, just like it did for Bill Clinton when he was sued by Paula Jones. Whether a president has immunity from a civil suit for actions before taking office and unrelated to his office, was decided by the Supreme Court in Clinton v. Jones.[1] In a unanimous opinion by Justice John Paul Stevens, the Court ruled that separation of powers does not mandate that federal courts delay all private civil lawsuits against the President until the end of his term of office.  Therefore, if Clifford’s suit against Trump is able to proceed, he might face a dilemma. If he lies under oath, he commits perjury. If he tells the truth, well that might be embarrassing.

A defamatory statement is one that is both false and that tends to “harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”  Usually statements that are “merely unflattering, annoying, irksome, or embarrassing, or that hurt only the plaintiff’ s feelings” do not support a defamation claim.  Humor or parody is generally protected by the First Amendment and is considered a form of protected opinion. There is no libel when the material is clearly understood as parody, satire, humor, or fantasy and is not capable of a defamatory meaning.[2] Similarly, statements that reflect a point of view, or opinion, rather than specific allegations of fact are not considered defamatory. “Vigorous epithets,” “rhetorical hyperbole,” “loose, figurative language,” or “lusty and imaginative expressions” are also not considered defamatory.

In one case,[3] cartoonist, Paul Conrad of the Los Angeles Times was sued by Los Angeles Mayor Sam Yorty for a cartoon lampooning his desire to be appointed to President Nixon’s cabinet. The caricature depicted him as he is about to be placed into a strait jacket and taken by medical orderlies. The caption read, “I’ve got to go now … I’ve been appointed Secretary of Defense and the Secret Service men are here!” Although the court held that a cartoon could be libelous if it presented as fact defamatory material which is false, it found the cartoon to be “no more than rhetorical hyperbole, a vigorous expression of opinion by those who considered Mayor Yorty’s aspiration for high national office preposterous.” As such it was a form of protected editorial comment which was not reasonably susceptible to a defamatory meaning.

One court[4] held that the “lunacy of the statements themselves” was a factor in finding the statements not defamatory as a matter of law. Rhetorical hyperbole is part of the larger opinion-fact distinction in defamation law.  To be defamatory, a statement must be one of fact. Consequently, neither statements of opinion, which do not imply assertions of fact, nor statements that are not to be taken literally, such as rhetorical hyperbole, are considered defamatory.

In dismissing Stormy Daniels suit, the court held:

Mr. Trump's tweet served as a public rejoinder to allegations made by Plaintiff.  If this Court were to prevent Mr. Trump from engaging in this type of "rhetorical hyperbole" against a political adversary, it would significantly hamper the office of the President.  Any strongly-worded response by a president to another politician or public figure could constitute an action for defamation. This would deprive this country of the "discourse" common to the political process.  In short, should Plaintiff publicly voice her opinions about Mr. Trump, Mr. Trump is entitled to publicly voice non-actionable opinions about Plaintiff.
 
 
Clifford’s attorney has filed an appeal seeking to overturn the dismissal.
 
You can read the judge’s opinion here.
 


[1] Clinton v. Jones, 520 U.S. 681 (1997).

[2] Salek v. Passaic Collegiate School, 255 N.J. Super. 355 (N. J. Super. Ct. App. Div. 1992).

[3] Yorty v. Chandler, 91 Cal. Rptr. 709, 715 (Cal. Ct. App. 1970).

[4] Frank v. National Broadcasting Co., Inc., 506 N.Y.S.2d 869, 875 (N.Y. App. Div. 1986).

​Shopping refers to the practice of producers pitching a story that they do not own or have not optioned.  Let’s say you are a writer. You go in to see a producer and pitch your project. The producer says “Interesting. Let me think about it for a few days and get back to you.” After you depart, the producer calls his buddy, an executive at ABC, and pitches your story without your knowledge. If there is interest, the producer takes an option on your project. If there is no interest, he passes. He never tells you that behind your back he pitched your material and it was rejected. 
 
You go on your merry way and pitch your story to a more ethical person.  Let’s call him producer Bob. He takes an option on your story before pitching it. When he goes in to ABC they inform him that they already heard your story and passed on it. Producer Bob is unhappy that you did not disclose this fact to him. 
 
Shopping without permission of the writer is unethical.  Producers who do not risk any money on an option tend to hastily package and pitch a project. The tendency is to throw the project up against the wall to see if it will stick. A more careful approach developing the project and attaching elements would likely produce better results. Shopping can tarnish a project. Once ABC has heard and passed on your story, it is unlikely that they will reconsider, even if your story is better the second time.
 
While bestselling authors and acclaimed screenwriter are not likely to enter into shopping agreements, there are many novice writers who are open to have an experienced producer pitch their script even without being paid an option fee.  Many writers don’t have connections to production companies, networks, studios or platforms. A novice writer may feel fortunate to have her material presented by a legitimate producer with a track record and access to those who have the power to get a script produced. Moreover, producers may be reluctant to spend money optioning material from an unknown and unproven writer.  Sometimes the material is so original and unique that it is clearly a longshot to get it set up. 
 
Furthermore, the number of producers who have first look or exclusive deals at studios have declined. Under those deals, the studio typically would provide development money that could be used as option money. Producers who do not have such an arrangement with a studio have to pay option fees out of their own pocket. Consequently, shopping agreements have become increasingly common in the industry.
 
Producers like to have the opportunity to present the material without making a significant financial commitment up front. Writers hope that having an experienced producer shop and package the script with other attractive elements will increase its chances of getting produced. There is nothing improper about such an agreement provided the arrangement is disclosed and everyone understands the nature of the deal. 
 
A shopping agreement typically provides that the producer can bring the material to potential studios and networks, and, if there is interest, the writer and producer will each negotiate their own deal. This arrangement has some benefits for each party but also some potential pitfalls. If, for example, either party is unreasonable in their demands when negotiating their deal with a network, the other party cannot proceed without them. The producer has wasted his time and effort. 
 
With an option agreement, the producer has much more control over the project. The producer typically has the right to exercise the option, at which time the purchase agreement, which has been negotiated already, kicks in. The terms for the sale of the script have already been agreed upon so the writer has very little leverage and cannot prevent the project from moving forward as long as the producer abides by the terms of the option purchase agreement.
 
Shopping agreements are sometimes referred to as producer attachment agreements. The producer is helping prepare the project to be presented and may also attached other elements such as a star that will make the project more appealing. The producer typically has a track record, and a network takes comfort in knowing that they are dealing with someone who has the proven ability to produce a project. 
 
Shopping agreements tend to have shorter terms than option purchase agreements. The term is often less than one year; although, if the project is set up it may automatically be extended. The producer is protected by having a written agreement that prevents the writer from pursuing the project with a studio or network introduced by the producer. The writer is often precluded, even after the term, from pursuing the project with a third party that the producer has brought the project to. Producers sometimes pay a fee to the writer to compensate him from taking the project out of the market.
 
 

Congratulations to Devin Hume and Bruce Robinson. Their new crime mystery feature film Making A Killing  will premiere this Friday in Beverly Hills. It based on a true story involving a murder trial that recently concluded in Otero County, Colorado. 
 
The film tells the story of Arthur Herring who serves as the mayor, priest and mortician in a small town. A pillar of the community, he and his brother are accused of theft of a coin collection and the murder of a fellow mortician who is a convicted felon recently released from prison. The brothers struggle to keep their ambitions in check while a detective, Orlando Hudson, dives head deep into trying to find out what happened and why.
 
After meeting resistance in his investigation, Orlando presses on and soon uncovers a case with buried treasure, gold mining in dead bodies and a tangled love affair that is sure to rock the small town. 
 
The film stars Michael Jai White, Mike Starr, Sally Kirkland, Aida Turturro and Christopher Lloyd.  Writer/Director Devin Hume is known for his award winning short films and work as a cinematographer. This is his debut feature film.
 
The film will premiere in Los Angeles at the Laemmle Music Hall at 9036 Wilshire Blvd
in Beverly Hills on Friday August at 9:55 PM. Tickets can be purchased at: tickets
​​

​ A lawsuit has been filed claiming that “The Shape of Water” which won best-picture at this year’s Oscars, infringes the copyright of a play by a famous playwright. The estate of Paul Zindel, a Pulitzer prize-winning American playwright alleges  that Guillermo del Toro’s film “brazenly copies the story, elements, characters and themes” of Zindel’s play “Let Me Hear You Whisper” (1969).

As the Economist explains: 

Both stories are set in a government-controlled laboratory during the cold war. Both feature a cleaner who develops a relationship with a captive sea creature, dancing in front of its tank with a mop to a love song and devising a plan to smuggle it to safety in a laundry cart after she learns of plans to kill and dissect it.

However, there are many differences in the stories, and ideas are not copyrightable. While a detailed plot and characters can be protected under copyright law, the fact that two works share certain similarities does not mean one infringes the copyright of the other. It's complicated.

As Mark explains, "Unlike patent law, the first person to publish a creative concept does not own it. “If two people come up with the same story independently, without borrowing from the other one, they both get the copyright in their work,” 

Read he full article here .  

Congratulations to our clients producer Bruce Robinson and Director Devin Hume whose film Making a Killing will be shown at the  Santa Fe Film Festival on February  10th at 8.00 pm at The Screen theater, and at the Garden State film which runs from March 22nd to the 25th.  The film is being distributed by Shoreline Entertainment.

Making A Killing based on a true story revealed during a murder trial that recently concluded in Otero County, Colorado.
 
The film tells the story of Arthur Herring who serves as the mayor, priest and mortician in a small town. A pillar of the community, he and his brother are accused of theft of a coin collection and the murder of a fellow mortician who is a convicted felon recently released from prison. The brothers struggle to keep their ambitions in check while a detective, Orlando Hudson, dives head deep into trying to find out what happened and why.
 
After meeting resistance in his investigation, Orlando presses on and soon uncovers a case with buried treasure, gold mining in dead bodies and a tangled love affair that is sure to rock the small town.  
 
The film stars Michael Jai White, Mike Starr, Sally Kirkland, Aida Turturro and Christopher Lloyd.  Writer/Director Devin Hume is known for his award winning short films and work as a cinematographer. This is his debut feature film.

​Many bloggers and social media users may be surprised to learn that truth in advertising laws apply to them just as they do to television broadcasters and magazine publishers. Endorsements must be honest and not misleading. The endorser must disclose if they have a financial interest in the product they are promoting or if they are being paid to promote it.
 
Recently, the Federal Trade Commission (FTC) for the first time went after social media influencers who did not disclose their interest in a website that they promoted to their subscribers.  Trevor Martin and Thomas Cassell are popular social media influencers in the online gaming community. They posted videos on their YouTube channels (with 3.3 million and 10 million subscribers respectively) showing them participating in an online gambling service without disclosing that each had a 42.5% ownership interest in the online gambling company, thereby violating FTC disclosure laws. The FTC’s complaint can be read here.  
 
The case was settled with a Consent Agreement that requires the parties to:
 

• Comply with FTC disclosure guidelines, with an additional burden to properly monitor and ensure compliance by any endorsers they partner with for promotional purposes in the future;
• Submit a compliance report in one year;
• Keep records of activities related to the business for up to 10 years; and
• Submit to ongoing compliance monitoring by the FTC for a period of up to 10 years.

  
The FTC is troubled with endorsements that are made on behalf of a sponsoring advertiser. For example, an endorsement by a blogger would be covered by the FTC Act if he or she was paid to mention a product. Even if not paid, if one receives free products or other benefits with the expectation that the blogger will promote a product in a  blog, the blogger is potentially violating the law.  Such practices may constitute unfair or deceptive acts affecting commerce in violation of Section 5(a) of the Federal Trade Commission Act.
 
The FTC publishes endorsement guides  to provide guidance as to the rules and laws that apply. A single disclosure on a home page may not be adequate to insulate yourself from liability if visitors would not see the disclosure when reading a review or watching a video on your site.
 
 Mark Litwak

The Grinch and Fair Use
By Mark Litwak
 
On September 15, 2017, Judge Alvin K. Hellerstein of the United States District Court
for the Southern District of New York[1] issued an important fair use ruling about a play based on a children’s book. Playwright Matthew Lombardo wrote Who's Holiday! which makes fun of the characters, plot, and setting of the classic book, How the Grinch Stole Christmas! ("Grinch") by the late Theodor Seuss Geisel who went by the pen name
Dr. Seuss. The author created many of the most popular children's books of all time, selling more than 600 million copies.
 
The original Grinch book is about a green creature that lives in a cave on Mount Crumpit in the town of Who-Ville, home of the merry and cheerful Whos, who love Christmas.
The Grinch, who hates Christmas, decides to ruin the holiday by disguising himself as Santa Claus and stealing all of the communities’ Christmas trees and presents. While pursuing his evil deeds, he meets Cindy-Lou Who, a cute two-year old.  When she asks the Grinch why he is taking her family's tree, the Grinch lies by telling her that he needs to repair a light but will return it soon. Cindy-Lou goes back to bed. The next day, as the Grinch listens for the sound of despair from crying residents, he is surprised instead when he hears merry singing. The Grinch, upon learning that the residents could remain joyous even without presents or Christmas trees, realizes that Christmas means more than presents.

The play is a one woman 75-minute comedy presenting a destitute 45-year-old adult version of Cindy-Lou Who. It takes place at a 1970s-era trailer. Cindy-Lou speaks to the audience in rhyming couplets that are clearly intended to evoke the work of Dr. Seuss while waiting for guests to arrive for her Christmas party. She informs the audience, using bawdy rhymes, of the story of her life, beginning with her first encounter with the Grinch followed by sex, a marriage opposed by her parents, the birth of a child, and eventually divorce.

As she relates her story, Cindy-Lou swills hard alcohol, consumes prescription pills, and smokes a substance she calls “Who Hash," which she describes as just "like a prescription" which keeps her in check to avoid a "conniption." She engages in this self-medication following her realization that none of the guests she invited to her party is going to arrive, as they keep calling throughout the Play to cancel.
 
The key issue raised by the case was whether the Play is a fair use that comments on Grinch by imitating and ridiculing its characteristic style for comic effect, or unfairly exploits the characters, style and themes of Grinch to capitalize on the original. Under the fair use doctrine, authors can draw upon existing works to produce new works of authorship without violating the copyright of the original author. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship, and research. Thus, a movie or literary critic does not need permission to include a small quote from a work being reviewed. It is sometimes said of writers that if you borrow extensively from another’s work, you are a thief; but, if you borrow small amounts from many, you are a scholar. Of course, the scholar adds value by synthesizing information from prior works and creating something new. 
 
In determining whether the use of a copyrighted work is a fair use, courts weigh four factors: 1) the purpose and character of the work; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion borrowed in relation to copyrighted work as a whole; and 4) the potential adverse effect on the market for, and value of, the copyrighted work.
 
One type of fair use is a parody, which is a work that imitates the characteristic style of an author or a work for comic effect or ridicule. The work copied must be, at least in part, an object of the parody. The central question in many instances is “whether and to what extent the new work is 'transformative.’'' In other words, as the Supreme Court has explained, "whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message."[2]
​
After a detailed analysis, Judge Hellerstein found that the Play “recontextualizes Grinch's easily-recognizable plot and rhyming style by placing Cindy-Lou Who — a symbol of childhood innocence and naiveté — in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teen-age pregnancy, drug and alcohol abuse, prison culture, and murder. In so doing, the Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou's naiveté, Who-Ville's endlessly-smiling, problem-free citizens, and Dr. Seuss' rhyming innocence, all appear ridiculous.”
 
This case is another in a recent series of cases[3] that further defines what is a fair use and expands protection for authors who parody pre-existing works. However, this past June, a motion to dismiss a case concerning the works of Dr. Seuss was decided by the United States District for Court for the Southern District of California with a different outcome.[4] Rather than dismiss the case, the court let the matter proceed forward.
 
In Dr. Seuss Enters., L.P. v. ComicMix LLC, Defendants created a Kickstarter campaign in order to fund printing and distribution of an allegedly infringing work, Oh, the Places You’ll Boldly Go! ("Boldly"), which combines aspects of various Dr. Seuss’ works with "certain characters, imagery, and other elements from Star Trek, the science fiction entertainment franchise created by Gene Roddenberry. Here, the court refused to dismiss the copyright infringement claim on the grounds that there was insufficient evidence of whether this work would affect the market for Dr. Seuss’ work. The court found that Boldly failed to qualify as a parody even though it was transformative, explaining, “it combines into a completely unique work the two disparate worlds of Dr. Seuss and Star Trek. Go! tells the tale of a young boy setting out on adventure and discovering and confronting many strange beings and circumstances along his path.” While the defendants were not successful in getting the court to dismiss the complaint with a preliminary ruling, the outcome of the case remains to be decided.
 
These two cases demonstrate the difficulty of determining whether a fair use defense is viable. One useful resource in determining fair use is the copyright office’s compilation of cases in its Fair Use Index found at: https://www.copyright.gov/fair-use/fair-index.html.
[1] Lombardo v. Dr. Seuss Enters., L.P., No. 16 Civ. 9974 (AKH), 2017 U.S. Dist. LEXIS 150213, (S.D.
N.Y. Sept. 15, 2017), available at https://advance.lexis.com/api/document/collection/cases/id/5PGM-YH61-F04F-03KC-00000-00?cite=2017%20U.S.%20Dist.%20LEXIS%20150213&context=1000516. 
 
[2] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994).

[3] See Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., 953 F. Supp. 3d 701, 712, where the court held that Woody Allen’s inclusion of a short quote (“The past is not dead! Actually, it’s not even past”) from William Faulkner’s Requiem for a Nun in the film Midnight in Paris was a fair use. In Seltzer v. Green Day, Inc., 725 F.3d 1170, 1179 ((9th Cir. 2013), the Ninth Circuit held that the popular band Green Day’s unauthorized use of street artists’ work as a video backdrop for its stage show did not violate the artists’ rights.

[4] Dr. Seuss Enters., L.P. v. ComicMix LLC, No. 16cv2779-JLS (BGS), 2017 U.S. Dist. LEXIS 89205, at *31 (S.D. Cal. June 9, 2017). 

According to a recent New York Appellate Division  decision, stories based on facts that have significant fictionalization may violate New York’s Civil Rights Law Section 51,  which contradicts precedent in other jurisdictions and has created uncertainty as to when one can produce a fictionalized movie based on true events without obtaining releases from the subjects of the story.
 
Several years ago, a New York court enjoined Lifetime Television from exhibiting the movie Romeo Killer: The Christopher Porco Story, which was based on the true story of Porco's murder of family members. Porco sued Lifetime, but Lifetime was able to vacate the injunction as a prior restraint of its first amendment right to free expression. This ruling was later upheld on appeal, and Porco's complaint dismissed. Now, however, the Appellate Division has reversed that dismissal.  
 
Porco, who is incarcerated, contended that the movie violated New York’s Civil Rights Law Section 51, the state's privacy law, which protects individuals from the use of their identity for advertising or trade without the prior written consent of the subject. New York's law, however, has an exception for stories considered newsworthy. Porco alleged that the story is a fictionalized account, and that it appropriates his name without his consent "for purposes of profit."  In a surprise decision, the appeals court ruled that the newsworthiness exception could be overcome by fictionalizing the story.
 
The decision is based in part on an earlier decision concerning a fictionalized biography of Warren Spahn, a well-known baseball player, who sued over the publication of an unauthorized biography alleging that his rights under New York’s misappropriation (privacy) statute had been invaded. In the purported biography, the author took great literary license, dramatizing incidents, inventing conversations, manipulating chronologies, attributing thoughts and feelings to Spahn, and fictionalizing events. The invented material depicted the Spahn’s childhood, his relationship with his father, the courtship of his wife, important events in their marriage, and his military experience.
 
The book’s author argued that the literary techniques he used were customary for juvenile books. The defendant never interviewed Spahn, any members of his family, or any baseball player who knew him. The author’s research was comprised of newspaper and magazine clippings, the veracity of which he rarely confirmed. The court held that the New York privacy statute protects a public person from fictionalized publication only if the work was published with knowledge of the falsification or with reckless disregard for the truth (actual malice). In the Spahn case, the court found that the author knowingly incorporated a lot of fictional and false material.
 
So, the precedent became that factual reporting of newsworthy persons and events is in the public interest and is protected, but the fictitious is not. But what happens when facts and fiction are combined, which is common?  Many films are based on true stories, but take considerable creative liberties in telling their tales, including fictionalizing persons and events to make the story more compelling.
 
The Reporters Committee for Freedom of the Press, as well as HBO and the Motion Picture Association of America, Inc. (MPAA) have filed petitions to submit amicus briefs in support of Lifetime and have asked for an immediate review by the Court of Appeals. They argue that the decision is inconsistent with other New York and other state decisions involving expressive works, and with protections for freedom of speech. They contend it threatens to chill creative expression and deter the creation of films and television shows based on real people and events.
 
The full decision can be read here:
 
Reporters Amicus motion: 
 
Lifetime’s motion:
 
HBO and MPAA motion:
​

Actresses often complain about age discrimination in the movie business. Even relatively young actresses claim they have experienced discrimination. Olivia Wilde was reportedly denied the role of Leonardo DiCaprio’s wife in The Wolf of Wall Street when she was 28 years-old, ten years DiCaprio’s junior, with the role given to Margot Robbie who was only 23. [1]

It is not always easy to determine the age of an actor by their appearance at a time when plastic surgery is ubiquitous.  One frequently used source to determine an actor’s age is IMDb.com and its professional version, IMDb pro.com, which are widely used for casting in the entertainment industry. Consequently, many actors do not want to reveal their true age on their IMDb profiles because they believe it may put them at a competitive disadvantage.

In 2013, actress, Huong “Junie” Hoang, initiated a suit   against IMDb based on age discrimination in the case of Huong Hoang v. Amazon.com, Inc. [2]As an aspiring actress, Hoang had signed up for IMDbPro in 2001 but wanted to conceal her real age of 30 so she represented that she was 23. In September 2007, she decided that she no longer wanted the false birth date, and began contacting IMDb, asking that her birth date to be removed from her profile. IMDb informed her it would take measures to remedy any confirmable inaccuracies. She then sent IMDb a number of documents purporting to show her listed birth date was incorrect, including a fake Texas ID, but none of these documents satisfied IMDb, which refused to remove her date of birth from her profile page.

Last year SAG-AFTRA advocated the passage of AB 1687 which was part of effort to mitigate age discrimination in Hollywood by requiring subscription-based entertainment casting databases like IMDb to remove subscribers’ date of birth information upon request. The bill was also backed by the Teamsters, DGA, WGA-West, the Association of Talent Agents, and AARP of California. The law passed through both houses of the California Legislature with an overwhelming majority. The law took effect on January 1, 2017. AB 1687 permits anyone who pays for IMDb Pro to have a date of birth or age removed from an IMDb profile.

IMDb.com, which is part of Amazon.com, has contested the constitutionality of the law and has filed a lawsuit against the State of California in United States District Court for the Northern District of California (Case No. 16-cv-06535-VC) seeking to have a judge void the law. IMDb.com argues that this law does not prohibit the discriminatory use of information, but forces the removal of factual information from the public, which it says is unconstitutional censorship.  

The court found the government had identified a compelling goal – preventing age discrimination in Hollywood. But the government had not shown how the law was necessary to advance that goal. In other words, the court found that it was unclear how preventing one website from publishing age information could meaningfully combat discrimination. Consequently, on February 22, 2017 United States District Judge Vince Chhabria granted the request for the injunction which will stop enforcement of the law while the lawsuit is pending. 

[1] http://www.jdsupra.com/legalnews/25-is-the-new-40-california-s-ab-1687-15211/

[2] Huong Hoang v. Amazon.com, Inc., 2013 U.S. Dist. LEXIS 190477 * (W.D. Wash. Mar. 18, 2013)