Kramer vs. Kramer (aka Fictional Characters vs. Their Real Life Inspirations)

Stand UpI love stand-up comedians (Chris Rock, Kathleen Madigan, Jim Gaffigan…) but had never heard of comedian Mike Maron until Louis CK talked about his podcast on Howard Stern.  And then Stern interviewed Maron when he was promoting his new show on IFC.  It’s called Maron and it’s a fictionalized account of his life.  Maron is one of those stand-up comedians who came up with a lot of the comedians we all know – Louis, Jon Stewart, and Janeane Garofalo – but he never made it big (although he’s getting closer now).  And he’s angry about that.  Or was, anyway.  He’s getting past it now, apparently, and spends a great deal of time on his podcast apologizing to the comedians he was mean to out of jealousy.

So I just finished watching the first season of Maron.  In it, Maron plays himself, other actors play fictional characters, and some actors play fictionalized versions of themselves.  And he references characters from his real life – his dad, his ex-wife, etc.  His relationship with some of these characters – on and off screen – is pretty toxic, so it made me wonder…what happens when real life people are depicted as “fictional” characters in shows or books?

Old Movie ProjectorThere are classic examples of real people who were used, in “fictionalized” form, in TV shows and movies.  In his masterpiece, Orson Welles based the citizen himself in Citizen Kane on William Randolph Hearst.  Hearst didn’t bother to sue, however, choosing to use his considerable wealthy and power to try to stop the movie from being made or distributed at all (although he wasn’t successful, thank goodness).

In that more recent classic of the small screen, Seinfeld (good lord, that makes me feel old!), both the Kramer and Costanza characters were based, at least in part, on a real life Costanza and Kramer.  Kramer didn’t sue for the inspiration he provided, although he did send a list of demands to Castle Rock for the use of his name.

GavelThe real-life Costanza, on the other hand, did sue.  Costanza v. Seinfeld, 693 N.Y.S.2d 897 (N.Y.Sup. 1999).  But just like his fictional counterpart, Costanza had nothing but bad luck.  The court not only found that his claims were either baseless or not allowed under New York law, but also held that his suit was so frivolous that he and his attorney each had to pay a sanction of $2,500 to the defendants.

Other plaintiffs in similar situations usually don’t fare any better.  In a case against the writers and producers of CSI, for example. the plaintiffs filed a defamation claim because of the actions taken by characters on an episode of CSI.  Tamkin v. CBS Broadcasting, Inc., 193 Cal.App.4th 133 (Cal. App. 2011).  In the rough draft, the TV characters actually had the same names as the plaintiffs (the names were changed before the show was filmed) and both the fictional and real male character worked in the real estate industry.  The court ruled, however, that even if the depiction was defamatory (the male character was a hard drinker and into kinky sexual acts), the question was whether a reasonable person would understand the characters to actually refer to the plaintiffs.  The fact that the real and fictional characters shared both first and last names (and that the wives in both instances had the same name) was not enough.  Even the similarity in the area of work for the fictional and real characters was not enough.   Nor was a generally similar physical description enough.  Instead, such specific details as a special birthmark, birthplace, children’s names, educational background, or unique career were needed to assist a reasonable person to recognize that the fictional character is actually the real-life plaintiff.

In another case, the parties argued over whether the supposedly defamatory actions taken by a “fictionalized” character in a book could reasonably be understood as stating actual facts about the real person.  Smith v. Stewart, 660 S.E.2d 822 (Ga. App. 2008).  The book at issue contained the usual disclaimer, of course, about the novel being a work of fiction, but the appellate court still said that such a disclaimer (or the humorous nature of a publication) will not protect it from a defamation claim “if the allegedly defamatory statement could [] be reasonably understood as describing actual facts about the plaintiff or actual events in which he participated.”  In this instance, the plaintiff had a small measure of success because the appellate court found that there was a genuine factual dispute over that issue and so it sent the case back to the lower court.

In general, however, the courts seem reluctant to hold creative people (comedians, authors, screenwriters, etc.) liable for drawing inspiration from their real lives.  And, as a fan of comedians (and books, TV shows, and movies), I appreciate that.  I just have to hope I never tick off a budding comedian!

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Jessica has been litigating business and IP disputes for the past decade. During that time, she’s dealt with clients, lawyers, and judges who have varying degrees of appreciation for the challenges of managing discovery in an electronic age. Until the fall of 2011, she was an attorney at a large, Texas-based law firm, where she represented clients in state and federal court nationwide. That fall, she made a long-desired move back to the Midwest and is now a partner at Hansen Reynolds Dickinson Crueger LLC, a litigation boutique based in Milwaukee, Wisconsin, where she continues to litigate while also consulting with business and law firms on e-discovery issues (before, during, and after litigation arises).