Football & Free Speech: Third Circuit Vidgame Decision Has Broader Implications for Reality-Based Works

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42, 127 Hours, Act of Valor, Argo, Dolphin Tale, Fair Game, Green Zone, I Love You Philip Morris, Moneyball, People Like Us, Sanctum, Secretariat, Soul Surfer, The Bling Ring, The Fighter, The Runaways, The Whistleblower, Unstoppable — these are only a few of the motion pictures released since 2010 that are based, to one degree or another, on actual events and/or real people. The total number of reality-based motion pictures and television productions is staggering when one includes the myriad made-for-television movies and episodes of procedural crime dramas that are inspired by stories “ripped from the headlines.”

An unintended by-product of such dramas is, well, more drama. People who believe that they are identifiable with the characters who appear in reality-based works file lawsuits. Typically they claim that their right of publicity — that is, the right to control the commercial use of one’s name, photograph and likeness — has been misappropriated without their consent and without compensation. If the character has been portrayed in an unflattering manner, such claimants may also allege that they have been defamed or wrongfully placed in a negative, false light in the public eye.

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