United States: Be Careful When Creating Composite Characters

Last Updated: October 14 2015
Article by Rick Kurnit

A New York federal court has provided the creative community with an important reminder about the risks of portraying composite characters. The case, Greene v. Paramount Pictures Corp., underscores that even under New York law, which does not extend the right of publicity as far as other States, there are dangers - particularly given the difficulty of distinguishing editorial content from "advertising" or "commercial use."


The case arose from the hit film, The Wolf of Wall Street, directed by Martin Scorsese and starring Leonardo DiCaprio. The claims, for alleged violation of the right of privacy and for defamation, came from the former lawyer at Stratton Oakmont, the notorious brokerage house featured in the film whose co-founders went to prison for securities fraud and money laundering. The plaintiff argued that the Nicky Koskoff character in the movie - which was expressly "based on actual events" but disclaimed "any similarity to the name or to the actual character or history of any persons [and was] not intended to reflect on an actual character" - was using his "identity" because of his shared attributes with Koskoff, a "composite" character in the film.

Right of privacy

The good news for the filmmakers and other defendants was that the Court dismissed plaintiff's right of privacy claim. The court noted that "[m]erely suggesting certain characteristics of the plaintiff, without literally using his or her name, portrait, or picture, is not actionable under the [New York] statute," quoting Allen v. Nat'l Video, Inc., 610 F. Supp. 612, 621 (S.D.N.Y. 1985) (a case in which we represented the defendant). However in the Allen case the Court went on to note that Federal law might still provide a claim: Likelihood of confusion as to the celebrity's involvement with the content under the Federal trademark statute or Lanham Act.


However, the Court offered the plaintiff an opportunity to advance a libel claim, if he could meet the burdens imposed on such claims, despite the leading New York libel-by-fiction case, Springer v. Viking, 90 A.D. 2d 315 (1st Dep't 1982). In Springer (where we also represented the defendant), the court held that libel-by-fiction claims would be dismissed where a  person who knew the plaintiff could reasonably conclude that the plaintiff - despite being the model or inspiration for the depiction of the character - was not in fact the character. Here, The Wolf of Wall Street was by its own admission not purely fictional, but was instead based on a true story. As a result the Springer holding did not require dismissal of the libel claim at the early stages of the litigation. In the court's words: it was "plausible to allege that someone who was aware of Stratton Oakmont's fraud and Plaintiff's role at the company could reasonably associate the Koskoff character with Plaintiff."

Lanham Act claims may substitute for right of publicity claims.

The Wolf of Wall Street case demonstrates the difference between New York law and other states - particularly that of California on the scope of the right of publicity. However, the Federal Lanham Act may still provide a claim. For example, in a case brought in 2012, a New York federal court similarly dismissed a right of publicity claim brought by the so-called "Naked Cowboy" over the depiction of a "naked" M&M candy holding a guitar which appeared on a billboard in Times Square. The Naked Cowboy court noted explicitly that unlike California, New York law recognizes the difference between living people and inanimate objects. The Naked Cowboy court distinguished a California case in which Vanna White won a jury verdict that her right of publicity was violated when an advertisement depicted a robot turning the letters on a "Wheel of Fortune" game board, but the Court went on to hold that it could not dismiss the Federal Lanham Act claim because it was unclear whether the public assumes that if a celebrity is implicated there needs to be some kind of approval.


The Wolf of Wall Street case demonstrates that New York law does not provide a basis for celebrities to prohibit or collect damages for fictional representations that may call to mind an actual person when the producers do not actually use that person's name picture, likeness or voice. We caution, however, that other States, particularly California, and federal laws may provide a legal framework for such claims. As a result, content creators, advertisers and brands sponsoring or participating in content, must all be careful to consider the possibility of claims based on other State and federal laws when portraying composite characters or aspects of costume or context that call to mind real people.


This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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