Everything you need to know about 'The Social Network' and the law

Today we've got another attorney guest post, this one from Aaron Moss, a partner at L.A.'s Greenberg Glusker and co-founder of the firm's Law Law Land blog. He follows our thoughts on the subject with the best analysis we've seen of the possible legal claims stemming from "The Social Network." We'll let Aaron explain...

By Aaron Moss

The new Facebook movie, "The Social Network," opened this weekend to rave reviews and the No. 1 spot at the box office. If history is any guide, we should now prepare ourselves for two things: (1) a string of copycat films (coming soon, "Friendster: We Totally Came Up With This Idea First, Really!" and "MySpace: Hey, Where Did Everybody Go?"); and (2) a string of lawsuits.

As studio litigation departments know well, the standard legal claim that follows the release of a successful movie is one for “idea theft” brought by plaintiffs who claim that their idea for the movie was stolen by the filmmakers. But because "Social Network" is based on a true story — and because everyone who believes he invented Facebook has already sued Mark Zuckerberg — any claims are likely to focus on the film’s portrayal of real-life individuals.

Sometimes, people depicted in these movies aren’t so much upset about how they’ve been featured as they are about the fact that they didn’t consent (or get paid). But while right of publicity laws give people some ability to control the unauthorized use of their names and likenesses, those rights are generally limited to “commercial uses” of a plaintiff’s identity.

I know what you’re thinking: Is there anything more commercial than a film that’s making millions of dollars by telling the story of a kid who’s making billions of dollars? True enough, but courts have drawn a distinction between “commercial speech” such as advertising, and “expressive speech” such as films, movies and books. The latter category is entitled to heightened protection under the First Amendment. For example, several years ago, the heirs of some of the fishermen who died aboard the Andrea Gail sued Time Warner, alleging that the portrayal of their family members in "The Perfect Storm" violated their rights of publicity. The court dismissed the claims on the grounds that the individuals’ likenesses were used primarily for creative expression, not commercial purposes.

Films depicting real-life events may also draw claims for defamation or invasion of privacy from plaintiffs who assert that liberties taken with true facts have placed them in a false and unflattering light. For example, earlier this year, an Iraq war vet named Jeffrey Sarver sued the producers of the Academy Award-winning "The Hurt Locker" claiming that the story of an Army bomb disposal team leader was a rip-off of his life story. (Ever the dogged warrior, Sarver wasn’t dissuaded by the filmmakers’ claim that "Hurt Locker" was a work of fiction only loosely based on screenwriter Mark Boal’s experiences as an embedded journalist in Iraq, nor by Boal’s own assertions that the script’s main character was not based on any one individual.) Similarly, biopics about Winnie Madikizela-Mandela and '70s punk band the Runaways were met with threatened or filed defamation lawsuits over the depictions of the films’ principals.

Of course, the producers of "Social Network" can’t deny that their film’s main characters — Zuckerberg and putative Facebook co-founders Eduardo Saverin and Dustin Moskovitz, among others — are based on real individuals and real events. But producers contend that the movie is nevertheless a fictionalized portrayal. Indeed, the book upon which "Social Network" is partly based (Ben Mezrich’s cumbersomely titled "The Accidental Billionaires: The Founding of Facebook — A Tale of Sex, Money, Genius, and Betrayal"), describes itself as “a dramatic, narrative account” that “re-creates” scenes and dialogue, and uses “details” that have been “imagined” — which, to the trained eye, reads roughly as “a fake account containing fake scenes and dialogue using details that have been faked.”

This hybrid blend of fact and fiction is sometimes called “docudrama” (which for me just conjures up images of those 1980s made-for-TV movies starring Meredith Baxter-Birney), and often carries the doesn’t-actually-tell-you-anything-at-all tagline “inspired by true events.” But in general, plaintiffs have not fared well in lawsuits alleging defamation or false light invasion of privacy, even if producers have taken some liberties with the true facts in their films. The First Amendment gives filmmakers a considerable amount of artistic license to dramatize real life events for entertainment value.

Courts in these cases will first consider whether the audience will recognize the character at issue in the film as actually identifying the plaintiff. This “of and concerning” requirement is easily satisfied when the characters in the film share the same names as their real-life counterparts. But unlike Zuckerberg and the other principal players, several characters in "Social Network" are not directly tied to real individuals — for example, the girlfriend (played by new it-girl Rooney Mara) who breaks Zuckerberg’s heart, implicitly inspiring him to create Facebook, is either a composite character or altogether invented, while Zuckerberg’s real longtime girlfriend, Priscilla Chan, is nowhere to be found. It will be more difficult for these unnamed potential plaintiffs to demonstrate that they are being depicted in the film.

Courts will also consider whether audiences will believe the film is describing actual conduct or facts about the plaintiff, notwithstanding that it is labeled as fiction. Even if a plaintiff can demonstrate that the audience believes a character in the film is meant to portray her, only “assertions of fact” that are “provably false” and which harm certain aspects of the plaintiff’s reputation are actionable. This means that hyperbole and opinions that can’t be proven true or false don’t give rise to liability (also good news for the millions of people posting whiny and histrionic Facebook status updates about their own friends and colleagues). Nor do any statements, conduct or facts that are actually true (there goes Sean Parker’s lawsuit over the whole cocaine thing, I guess). Public figures like Zuckerberg also have the added requirement of proving “actual malice,” meaning that the filmmakers acted with knowledge that the characterization was false or in reckless disregard of the truth.

This is a high hurdle that is often insurmountable.

Legal issues aside, as is often the case, public figures need to weigh the benefits of bringing a lawsuit against unwittingly providing free publicity to a film they probably don’t want you to see. And there’s always the public relations backlash that any celebrity contemplating major litigation should take into account. All of which probably explains why, rather than filing a lawsuit, Mark Zuckerberg spent the week "Social Network" opened visiting Oprah and donating $100 million to New Jersey public schools.

It will be interesting to see whether any of the characters depicted in the film (whether identified by name or not) do file complaints. In weighing their options, these individuals have a choice fraught with irony: to succeed on a libel-by-fiction claim, a plaintiff must prove that she’s similar enough to a fictional character that the audience will think the film is about her — but at the same time that she’s different enough from the portrayal that her reputation is harmed by it.  As in, “everyone is going to think that alcoholic, unethical, promiscuous character is me, even though I’m not alcoholic, unethical or promiscuous.” (Potential plaintiffs may find sympathetic ears — and creative drafting pens — in the lawyers who filed Lindsay Lohan’s now-infamous “milkaholic” lawsuit against E*Trade.)

Given the legal hurdles, these would-be plaintiffs might be better off waiting for Facebook to add a legitimate “dislike” button, so they can register their dissatisfaction with "The Social Network" in a more appropriate forum.

Aaron Moss is a partner at Greenberg Glusker specializing in entertainment litigation. Got an idea for a guest post? Email us at [email protected].