# How is stopping someone making a film about very famous public figure not a 1A violation? **URL:** \ **Category:** Great Debates\ **Created:** [March 21, 2022, 7:29pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445 "2022-03-21T19:29:37Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [March 21, 2022, 9:21pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/21 "2022-03-21T21:21:20Z")
Well, not “just as much.” But it is a protected expression, yes. ---
**Author:** ![AlsoNamedBort](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alsonamedbort/32/3213_2.png) [@AlsoNamedBort](https://boards.straightdope.com/u/AlsoNamedBort)\ **Post date:** [March 21, 2022, 9:22pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/22 "2022-03-21T21:22:52Z")
> [@griffin1977](#): > > How does the same law that stops people using Billy Joel and Kurt Cobain’s likeness You keep saying this, but again, so far no one is stopping them from making this movie. But if they make the movie and it has Billy Joel murdering someone, then they’ll probably get sued. ---
**Author:** ![Uncle\_Jocko](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/uncle_jocko/32/2932_2.png) [@Uncle\_Jocko](https://boards.straightdope.com/u/Uncle_Jocko)\ **Post date:** [March 21, 2022, 9:23pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/23 "2022-03-21T21:23:03Z")
> [@Jimmy\_Chitwood](#): > > Oh, I see. Yeah, I think the answer to your question is just the “stops people” part. It doesn’t act as an actual legal barrier preventing the making of the film. It just means people won’t try. I agree that this is probably the answer they’re looking for. A true First Amendment violation probably means the filmmakers would go to jail for making an unauthorized Kurt Cobain or Billy Joel film - which obviously is not the case. Here, they’re simply threatened with civil suits (thereby losing money) if they go through with it, so they don’t. It’s not the threat of imprisonment by the government; it’s the threat of expensive legal proceedings. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [March 21, 2022, 9:23pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/24 "2022-03-21T21:23:36Z")
> [@Jimmy\_Chitwood](#): > > You could absolutely make a movie factually representing events in the life of a famous person, and if you were sued based on some state right to publicity law, you could make a First Amendment argument. I think the issue is that these studios largely just _don’t_ , because they’re trying to make money. Though I don’t think this is just a self-censorship thing (stifling free speech by the threat of law suits and their cost is definitely a thing, but that’s not what I’m taking about here). They may largely avoid taking these cases to court, but I think they have actually been to court in the past, and be found to not violate the 1st Amendment that is what I don’t understand. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [March 21, 2022, 9:25pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/25 "2022-03-21T21:25:18Z")
Firstly, Hitler and Stalin are dead. Furthermore, their name and likeness are not considered to have any commercial value for which their estates could be compensated. Cheney is alive, but as a **political** figure, the rules of privacy that attach to him are different, just as the rules of libel, slander and defamation are different for him. Do you believe you should have the right to make a movie about me without my permission? ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [March 21, 2022, 9:26pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/26 "2022-03-21T21:26:01Z")
> **[Billy Joel Biopic ‘Piano Man’ Greenlit by Michael Jai White’s Jaigantic...](https://variety.com/2022/film/news/billy-joel-biopic-piano-man-jaigantic-1235199055/)** > > A Billy Joel biopic titled 'Piano Man' is in the works at Michael Jai White's Jaigantic Studios. Adam Ripp is attached to write and direct. > However, Billy Joel’s rep says that Joel is not involved with this film project, and that no rights in music, name/likeness or life story will be granted. > > Instead, Jaigantic has acquired the life rights to Mazur, who was Joel’s music rep from 1970 to 1972, the year before his commercial breakthrough. The law that presumably is being carefully hedged is the [California Celebrities Rights Act](https://en.wikipedia.org/wiki/California_Celebrities_Rights_Act), whose protection of [personality rights](https://en.wikipedia.org/wiki/Personality_rights) after death were copied by a [number of other states](https://en.wikipedia.org/wiki/Personality_rights#U.S._states_that_recognize_rights_of_publicity). Whether the rights are under the protection of the First Amendment is a very complicated issue of law, with various cases coming down on both sides of the subject as that page indicates. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [March 21, 2022, 9:26pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/27 "2022-03-21T21:26:19Z")
> [@Uncle\_Jocko](#): > > A true First Amendment violation probably means the filmmakers Again _absolutely_ 100% very very wrong. The government saying “stop saying this thing or we will use government force to take all your money” is covered by the 1st amendment whether its a fine in a criminal court or a judgement in a civil court. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [March 21, 2022, 9:29pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/28 "2022-03-21T21:29:05Z")
Here is a pretty basic description of the right to publicity and what it means. > **[The Right of Publicity](https://www.nolo.com/legal-encyclopedia/the-right-publicity.html)** > > The right of publicity is the right to control the commercial exploitation of a person's name, image or persona. ---
**Author:** ![GreysonCarlisle](https://avatars.discourse-cdn.com/v4/letter/g/a87d85/32.png) [@GreysonCarlisle](https://boards.straightdope.com/u/GreysonCarlisle)\ **Post date:** [March 21, 2022, 9:30pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/29 "2022-03-21T21:30:09Z")
Any film about a politician or political leader is almost automatically considered to be at least partly for informational purposes or in the public interest. Any film about a celebrity is already heavily weighted toward being pure entertainment. So films about Cheney, Stalin, Trump, or Hitler are pretty much fair game, while films about Billy Joel or Kurt Cobain are not. But it can get tricky. ---
**Author:** ![Uncle\_Jocko](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/uncle_jocko/32/2932_2.png) [@Uncle\_Jocko](https://boards.straightdope.com/u/Uncle_Jocko)\ **Post date:** [March 21, 2022, 9:33pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/30 "2022-03-21T21:33:02Z")
I don’t agree that losing a civil suit in court = First Amendment government action to deprive you of your money. Maybe I’m wrong, but that sure feels like a reach to me. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [March 21, 2022, 9:36pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/31 "2022-03-21T21:36:20Z")
> [@Kent\_Clark](#): > > Firstly, Hitler and Stalin are dead. So is Kurt Cobain. > [@Kent\_Clark](#): > > Furthermore, their name and likeness are not considered to have any commercial value for which their estates could be compensated. The films made money (well Downfall did, I think, I wouldn’t be surprised if the others lost money) because they were about the real life public figures depicted in them. Downfall would have made less money if it had been about a generic mustachioed German dictator. > [@Kent\_Clark](#): > > Cheney is alive, but as a **political** figure, the rules of privacy that attach to him are different, just as the rules of libel, slander and defamation are different for him. Nope, the rules are different because he’s a [_public figure_](https://en.wikipedia.org/wiki/Public_figure). The same rules would apply to Billy Joel or Kurt Cobain. > [@Kent\_Clark](#): > > Do you believe you should have the right to make a movie about me without my permission? Absolutely, the 1st Amendment completely protects my right to do so (especially if, say, you are the alter ego of invincible Alien who performs extra-judicial crime fighting 🙂 ) ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [March 21, 2022, 9:37pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/32 "2022-03-21T21:37:43Z")
It’s a sort of cart before the horse issue. A civil judgment definitely _can_ be a state action you use to establish a violation of your rights. But you only get there if either 1. the underlying state law is facially unconstitutional or 2. the way the law was applied in your particular case was unconstitutional. You can easily imagine a law being passed that is just wildly unconstitutional, and in that case of course enforcement of that law would be a civil rights violation. You can also imagine a law that’s valid sometimes being enforced to deprive a particular person of a constitutional right in an illegal way. But you’d have to establish that an action for damages based on a state right to publicity law would be one of those scenarios, so we’re right back where we started: with people not making the movie at all because none of that sounds like what they got up for this morning. edit: > [@griffin1977](#): > > Absolutely, the 1st Amendment completely protects my right to do so (especially if, say, you are the alter ego of invincible Alien who performs extra-judicial crime fighting 🙂 ) Not completely. You can be sued for, e.g., defamation. And for violating other state laws. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [March 21, 2022, 9:58pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/33 "2022-03-21T21:58:16Z")
> [@Jimmy\_Chitwood](#): > > civil judgment definitely _can_ be a state action you use to establish a violation of your rights. But you only get there if either 1. the underlying state law is facially unconstitutional or 2. the way the law was applied in your particular case was unconstitutional. This is the crux of the OP. Either or both these seem trivially true to me. Saying you cannot make a creative work about a public figure, even if you don’t break any copyrights or defame anyone, even one how has passed away and is central to modern culture as any politician or military leader (e,g, Elvis) seems a blatant example of infringing the right to free speech. ---
**Author:** ![GreysonCarlisle](https://avatars.discourse-cdn.com/v4/letter/g/a87d85/32.png) [@GreysonCarlisle](https://boards.straightdope.com/u/GreysonCarlisle)\ **Post date:** [March 21, 2022, 10:02pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/34 "2022-03-21T22:02:28Z")
> [@griffin1977](#): > > Saying you cannot make a creative work about a public figure, even if you don’t break any copyrights or defame anyone, even one how has passed away and is central to modern culture as any politician or military leader (e,g, Elvis) seems a blatant example of infringing the right to free speech. Speaking specifically toward the Elvis estate, pretty much every time they take somebody to court for using the Elvis name or public image, they lose. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [March 21, 2022, 10:16pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/35 "2022-03-21T22:16:37Z")
> [@griffin1977](#): > > This is the crux of the OP. Either or both these seem trivially true to me. Saying you cannot make a creative work about a public figure, even if you don’t break any copyrights or defame anyone, even one how has passed away and is central to modern culture as any politician or military leader (e,g, Elvis) seems a blatant example of infringing the right to free speech. IANAL, and all that, but: When the Joel Estate says the film can’t use his “music, name, or likeness,” they’re not saying that the film can’t be made at all, but that they have to be very careful about not making it appear that Joel has endorsed the film in any way. They can, absolutely, have a character named Billy Joel, who does things the real Billy Joel did, and who is played by an actor who looks like Billy Joel. What they can’t do, is put a picture of the real Billy Joel on a movie poster, or call it, “Billy Joel’s _The Piano Man_”, or use any recordings of him singing in any way, either in the movie, or in the advertising - probably not covers of his songs, either, but I’m not sure how copyright works there. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 21, 2022, 11:16pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/36 "2022-03-21T23:16:39Z")
> [@griffin1977](#): > > Again _absolutely_ 100% very very wrong. The government saying “stop saying this thing or we will use government force to take all your money” is covered by the 1st amendment whether its a fine in a criminal court or a judgement in a civil court. Your repeated use of “absolutely” in this thread is really misplaced, as your understanding of the 1st amendment is incorrect. The 1st says that “Congress may make no laws…” respecting freedom of speech. That’s entirely different than some notion that the judiciary can’t enforce property rights or provide injunctive relief. > [@griffin1977](#): > > How does the same law that stops people using Billy Joel and Kurt Cobain’s likeness without being sued out of existence not allow apply to Dick Cheney Are you familiar with the Streisand Effect? There are reasons to not sue that have nothing to do with whether a person was defamed or their likeness was misused. > **[Streisand effect](https://en.m.wikipedia.org/wiki/Streisand_effect)** > > The Streisand effect is an unintended consequence of attempts to hide, remove, or censor information, where the effort instead backfires by increasing awareness of that information. It is named after American singer and actress Barbra Streisand, whose attempt to suppress the California Coastal Records Project's photograph of her cliff-top residence in Malibu, California, taken to document California coastal erosion, inadvertently drew far greater attention to the previously obscure photograph i... ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [March 21, 2022, 11:30pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/37 "2022-03-21T23:30:08Z")
> [@Moriarty](#): > > repeated use of “absolutely” in this thread is really misplaced, as your understanding of the 1st amendment is incorrect. > > The 1st says that “Congress may make no laws…” respecting freedom of speech. That’s entirely different than some notion that the judiciary can’t enforce property rights or provide injunctive relief. No I’m saying, what is 100% absolutely absolutely absolutely true: the 1st amendment doesn’t say “congress can pass whatever laws infringing freedom of speech they want, as long as they don’t use criminal law codes to enforce them”. The 1st amendment says “make no laws” that goes for civil codes as wells as criminal ones. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [March 21, 2022, 11:32pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/38 "2022-03-21T23:32:19Z")
> [@griffin1977](#): > > The 1st amendment says “make no laws” that goes for civil codes as wells as criminal ones. Well, that’s sort of absolutely true. But what civil codes are you referring to that would prevent movies of the type you’re discussing? ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 21, 2022, 11:37pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/39 "2022-03-21T23:37:24Z")
> [@griffin1977](#): > > The 1st amendment says “make no laws” that goes for civil codes as wells as criminal ones. But you are conflating “Congress” with all legal authorities. That’s a mistake. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 21, 2022, 11:53pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/40 "2022-03-21T23:53:49Z")
It is not true that all forms of expression are protected by the 1st amendment. Hate speech and defamation are examples. So too would be contempt of court, as I think about it. Commercial speech is another huge body of law that cant simply be ignored by invoking “1st amendment”. Trademarks and copyrights are “things” that people can own. By owning them, they can decide when and where they are used, and can exclude them when they want. One’s likeness is largely the same thing. We, as people, have the exclusive right to earn money off of our voice, face, walk, posture, body, et al. Where that runs into limitations is the issue that facts are not things that people can own. So, while you may own your own likeness, you don’t own the fact that you have done various things in the world. And, depending on who you are, those things may have received a great deal of notoriety, or be especially interesting. So, if a person wants to make a movie about those facts, they can do so. But they would need your permission to use your likeness. Of course, that just begs the question of what constitutes a likeness, versus a factoid. But that’s where lawyers live, and why the decision on whether and when to sue can be so nuanced (e.g. did the misappropriation make somebody really rich? Was it an offensive depiction? Is it better to not draw attention to it?) [Previous page](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445.md?page=1) [Next page](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445.md?page=3)