Warning- spoilers for the movie Blow ahead, though I’m actually looking for an answer to a factual question
I was watching Blow over the weekend, the mostly true story of George Jung, one of the biggest cocaine smugglers/dealers in the US in the 70’s & 80’s. It’s based on the book by Bruce Porter, who interviewed George Jung extensively while writing the book.
Now while parts of the movie are fictionalized (renaming characters, the whole skipping bail because Barbara was dying plot), it’s basically a true movie. They say so at the beginning, they thank George Jung’s wife and daughter at the end, they even show a picture of the actual George Jung in prison right before rolling the final credits. Yet at the end of the credits, they put in the disclaimer (paraphrasing from memory):
“The persons, incidents and situations portrayed in this movie are fictional. Any resemblance to actual persons, incidents, and situations is coincidental and accidental.”
Now what is the point of that disclaimer? Clearly it’s a lie. They used the actual names of most of the major characters, who presumably approved of the making of the movie. So what kind of legal protection could that possibly provide? If Richard Barile, who the character Derek Foreal is based on, decided to sue because he didn’t like the movie, could that disclaimer possibly protect the producers? Or is it just standard boilerplate they put on every movie regardless of how inappropriate it is?
Every frame of a movie is a lie. No movie ever made is real, and no part of any movie ever made is real. The tiniest details you see, from driving a car to talking on a phone, are shaded and slanted and hyped and compressed and art directed.
The characters are not real people, even if they are based on real people. They are total lies, every one of them.
You may think I’m just saying that movies are fiction instead of documentaries. It’s more than that. Movies are unreal in a very literal sense. Real life is thick and dense and complicated and movies never are. There are always more people involved in real life than can be portrayed in a movie. No matter how many releases you get most of what is shown reflects on many people besides the major named characters.
Every frame of every movie is a lie. The only art is in how good the lie told is. Please don’t ever confuse any aspect of a movie with reality.
Also, the disclaimer is there not for the principal people involved, but for some person who claims a particular character was based on him (even if it wasn’t).
Say, for instance, the movie creates a composite character of a thief and uses the name “Harry Muldoon.” There may be a real Harry Muldoon who objects to the character. The disclaimer prevents Harry from suing (or, to be precise, it gives the producers a strong defense so a suit is unlikely to succeed).
It’s also standard boilerplate for the credits. It’s simple to put it there, and that may prevent problems.
Exapno, I get that, but it’s the “any resemblance” part that really puzzles me. Clearly, a movie with a main character named George Jung, from Weymouth Massachusetts, who imported/dealt enormous amounts of cocaine for Pablo Escobar, and who winds up in Otisville Federal penitentiary, bears a great resemblance to the actual person named George Jung, from the actual Weymouth Massachusetts, who actually imported/dealt enormous amounts of actual cocaine for the actual Pablo Escobar, and who is currently serving time at the actual Otisville Federal penitentiary.
I guess I accept that it’s boilerplate, I just can’t believe that a judge/jury would dismiss a lawsuit against the movie just because such a disclaimer existed, when there is so much evidence that the events & persons portrayed in the movie are pretty close to reality. Say I wrote a novel about “Exapno Chartcase” which is obviously very closely based on your life, but has added scenes where my fictional Exapno Chartcase molests children. Would adding a disclaimer protect me from lawsuits?
[Insert obligatory “nothing protects you from lawsuits, the question is whether you can lose one” cliché.]
Real life has a number of cases exactly like that. The outcomes varied depending on the million circumstances of the actual cases.
Boilerplate is used precisely because everybody uses it. That means it is wording that all lawyers clearly understand because it has gone through courts and the meaning has been confirmed or clarified by actual decisions. That’s why making up your own wording for a situation is always a mistake. You have to have a disclaimer and so having the same boilerplate disclaimer as everybody is by far the safest and smartest thing to do legally.
I recall someone pointing out what a hoot it was that this disclaimer showed up in The Greek Tycoon, which is a not terrifically fictionalized bio of Aristotle Onassis, starring Anthony Quinn. exapno puts it harshly, as usual. I don’t recall anyone putting disclaimers on plays purporting to be biographical. But it is true that you cannot trust anything in a dramatic movie (or a play, for that matter. Documentaries are another story). Events are telescoped or expanded or even created from nothing. Dialogue is re-arranged from one person to another, and re-written to be logical and dramatically compelling.
As Peter Stone recalled one of his dramatist friends saying, “God writes lousy theater.”
I haven’t seen Blow but suppose there was something like a fictional scene where Jung got arrested for the first time and bribed a cop to let him go. Now suppose you were the actual cop who had arrested Jung for the first time thirty years ago. You could say, “Hey, I’m the guy that arrested him. That character’s supposed to be me. They’re saying I took a bribe and that’s not true. I’m going to sue.” The legal disclaimer lets the movie company say that while the real George Jung was surrounded by real people, the George Jung in the movie is surrounded by fictional characters who have no relation to any real world people.
I remember a movie about Dorothy Stratten. The early parts of the movie showed her being raised by her aunt. In real life, Stratten’s parents were alive and she was raised by them. But the producers were worried that they might claim that the “parents” in the movie were based on them and sue, so they invented a fictional aunt to be Stratten’s parental figure.
possibly – Cat’s Cradle came out in 1963, and Peter Stone’s foreword citing the line was written in 1970, but doesn’t indicate when it was spoken. I’m given to suspect that more than one writer has had this particular thought, though.
Seems strange to me too, usually in ‘based on a true story’ movies, unless it’s really loosely inspired by real life, the disclaimer will read something more like “while based on real events, some events have been fictionalized for dramatic purposes, and some characters have been added or merged for flow of plot.”
That’s kind of what I was getting at in my question. To me it seems the disclaimer in my OP is so obviously false - “any resemblance … is completely coincidental and accidental” that the entire disclaimer could be thrown out - e.g.
Plaintiff: Your character Derek Foreal is obviously based on my client, Richard Barile.
Defendant: No, no, this was a fictional movie! Read our disclaimer! Any resemblance to actual persons and events is coincidental and accidental!
Plaintiff: We have testimony from George Jung, Mitra and Katherine Jung, criminal court records, visitor logs indicating you spent many hours interviewing George Jung in prison, etc. The resemblance to actual persons is clearly neither accidental nor coincidental. Therefore your disclaimer is a lie and worthless.
Judge: Sounds good to me - jury is instructed the disclaimer is invalid and should be ignored.
Jury: Ok. 3 million in compensatory damages to Richard Farile, plus another 5 million in punitive damages for having PeeWee Herman play him in the movie (actually, Paul Reubens does a great job).
Whereas jackdavinci’s disclaimer, admitting that the movie is based in fact, but things have been changed/added/removed for dramatic purposes, would hold up a little better.
To add a quick note – if a character is based on a real person, the real person (or their estate) will usually have to give consent. That is, George Jung had to agree to have his likeness and story put into movie form. And by agree, you can safely assume he was financially compensated for the rights.
I remember there was an issue on Seinfeld where they based a character on a guy named Kramer, and named the character Kramer without getting proper clearance (even though he was an acquaintance of Seinfeld’s in real life). Once the show became a hit, he demanded a good chunk of change (can’t remember exactly what) to avoid him suing, and NBC paid him.
No cites, just one of those things I learned during one of my many stints freelancing at NBC.
Also, when a fictional screenplay with fictional characters is written (not based on real life events), they’ll frequently try to find someone with the same name as one of the characters, even if there’s no resemblance at all other than the name, and have the person sign a “right to use my name & likeness” letter in exchange for $1. That way if soemone ELSE with the same name says it’s based on THEM, the prodco has a document saying that in reality it’s based on someone else and they were paid for the right to use their likeness.
That person only gets a buck but gets to tell a cool story with no downside. =)
It’s easier to put the general disclaimer than to put one that says “no characters are based on anyone real, except this character…and this one… and this one…”
There’s an exception if the person is considered to be a well-known public figure. You could make a movie about Paris Hilton, for example, without her permission because she’s well known.
In the Dorothy Stratten movie I mentioned above, they were able to use Stratten and her ex-husband who killed her because they had been part of a famous murder case. And they used Hugh Hefner because he was a public figure. But they didn’t name Stratten’s parents or her boyfriend, director Peter Bogdanovich, because they were not considered well enough known to be “public domain” - these people had fictional characters invented to replace them.
Heck, I watched De-Lovely yesterday, and watched the director’s commentary this morning. It’s the story of Cole Porter’s relationship with his wife and muse .Linda. And Cole Porter’s often sexual relationships with a whole bunch of men. Fred Astaire does not appear in the movie, but his name does. And there is a character singing a song which is strongly associated with Astaire. So evidently they talked to Astaire’s estate, which said Astaire may not be portrayed on screen–Astaire never wanted to be portrayed on screen-- and also that Astaire may not be suggested to be gay. So they put a line into the script explicitly clarifying that the young man on stage is Not intended to represent Astaire.
(Can’t tell you what kind of disclaimer if any went into this movie’s credits. Can tell you the Miracle is another movie with the kind of disclaimer that says everything’s fictional, even while all the director’s commentary and the making of featurette emphasize the lengths they went to re-create hockey with players that look like the original players, and use the original names and Al Michaels providing play-by-play–and a quick cut to the original “Do you believe in miracles?” call, which was not possible to recreate with the right intensity).
