Bordering On Reality: Can A Work Of Fiction Give Rise To A Misappropriation Claim?

Co-written by Karen N. Frederiksen

How much of a person's life can you use in a fictional work before the use becomes an unlawful misappropriation of that person's identity? Are there any limits when the use is in fiction, rather than in advertising, the genre that traditionally gives rise to misappropriation claims? These questions presently are before a New York trial court in Michael Costanza's suit against comedian Jerry Seinfeld.1 The real-life Costanza claims that Seinfeld used Costanza's name, likeness and persona to create the George Costanza character in Seinfeld's long-running television series, and that this use violated Costanza's rights under New York's misappropriation statute and invaded Costanza's privacy. Costanza seeks damages of $100 million.

A Similar Case Across The Country

The reach of California's misappropriation statute almost was considered by the California Supreme Court in Polydoros v. Twentieth Century Fox Film Corp., based on the Fox movie, "The Sandlot." In that case, Michael Polydoros claimed that his identity was misappropriated and his privacy invaded by use of his name-or at least a very similar sounding name-and his physical characteristics as a youth to create the character Michael "Squints" Palledorous in the movie. Polydoros claimed that he and the movie's creator, David Mickey Evans, played baseball together in the San Fernando Valley some 30 years earlier and that, like the fictional "Squints," Polydoros wore thick glasses and, at times, striped T-shirts.

Both the trial court and the Court of Appeal rejected Polydoros' claim, holding that the movie was protected speech and therefore not a misappropriation or invasion of privacy.2 Indeed, the Court of Appeal gave short shrift to Polydoros' misappropriation claim, stating that "[t]he law was never intended to apply to works of pure fiction."3 Quoting a New York case addressing a similar issue,4 the California Court of Appeal held:

It is generally understood that novels are written out of the background and experiences of the novelist. The characters portrayed are fictional, but very often they grow out of real persons the author has met or observed ... The end result may be so fictional as to seem wholly imaginary, but the acorn of fact is usually the progenitor of the oak, which when fully grown no longer has any resemblance to the acorn. In order to disguise the acorn and to preserve the fiction, the novelist disguises the names of the actual persons who inspired the characters in his book. Since a novel is not biography, the details of the character's life and deeds usually have, beyond possible faint outlines, no resemblance to the life and deeds of the actual person known to the author. Thus, the public has come to accept novels as pure fiction and does not attribute their characters to real life. 5

The Court of Appeal then held that the First Amendment "unequivocally" barred Polydoros' claim, and that this constitutional protection was not diminished by use of the "Squints" character in the movie's advertising.

In rendering its decision, however, the Court of Appeal emphasized the facts of the case, conceivably leaving open the possibility that a misappropriation claim could be based on a character in a fictional work under different circumstances. Specifically, the Court relied heavily on the age difference between plaintiff and "Squints," finding that the "marked difference in age and appearance" made it unlikely that anyone would confuse Polydoros and his fictional namesake.6 The Polydoros court also noted that the events of the film were fictional, and therefore did not give rise to a claim for public disclosure of private information.

Polydoros sought review by the California Supreme Court, arguing that: (1) California law improperly gave more protection to celebrities in misappropriation claims than to "common citizens"; and (2) even if the movie itself was protected expression, promotional materials for the movie using the "Squints" character should not be protected. The Supreme Court apparently was interested in these arguments, and accepted the case for review.7 As detailed below, however, the high...