Biopics Are Becoming Defamation Minefields. How Truthful Do They Really Need to Be?

When I Wanna Dance With Somebody—the new film based on the life of late legendary superstar Whitney Houston—hits screens this weekend, it’ll cap off yet another big year for biopics. From Weird: The Al Yankovic Story to Elvis to the Marilyn Monroe tale Blonde—not to mention TV series like Inventing Anna, Pam & Tommy, and Season 5 of The Crown—we’ve seen a slew of cultural icons’ stories come to life in 2022.

After the monumental success of Bohemian Rhapsody, the 2018 biopic about the band Queen that grossed $910.8 million and won four Academy Awards, studios were keen to bring the lives of beloved stars to the silver screen. And it’s worked—even Elvis, which was met with lukewarm reviews by critics, went on to gross $286 million at the box office. The feel-good energy of Baz Luhrmann’s bombastic spectacle, anchored by Austin Butler’s spot-on portrayal of Presley, has even seen the film emerge as an awards season frontrunner.

But the line between making beloved stars’ lives as dramatic and entertaining as possible for moviegoers, while also telling them what really happened, is extremely difficult to walk—especially as the legal issues surrounding biopics get murkier.

Emily Cox, a partner and the head of media disputes at leading U.K. law firm Stewarts, says the best way to avoid any legal issues or squabbles surrounding biopics is to involve the family of the protagonist from the very beginning.

“If you don’t collaborate with them and get them on board, it is possible that you will overstep the mark and they may have a cause of action, the most obvious one being defamation,” Cox tells The Daily Beast. “Production teams should want to have a collaborative approach. In order to avoid certain legal issues that can arise, they will often want to get those individuals on board from the beginning. They’ll sign consent forms and releases from the key individuals involved that’ll protect them from claims which might arise. It will also ensure the film has greater access to inside information and insights and private meetings that might have happened.”

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That’s exactly what the producers of Bohemian Rhapsody, Elvis, and I Wanna Dance With Somebody did. The latter film is produced by legendary record producer and Houston collaborator Clive Davis, who is portrayed by Stanley Tucci on screen, as well as Pat Houston, Whitney’s manager and sister-in-law. For Bohemian Rhapsody, Queen’s production company, Queen Films, oversaw the development of the film since 2010, with the band members reportedly interfering so much that Sacha Baron Cohen left the project over creative differences, before being replaced by Rami Malek in the role of Freddie Mercury.

Meanwhile, according to Presley’s granddaughter Riley Keough, Luhrmann sat down with the family “for several hours” before filming had begun. The Presleys were so impressed by Luhrmann that they provided exclusive access to Elvis’ Graceland home in Memphis, Tennessee, while Keough insisted that the family never gave him any rules over what the film could or could not include.

Of course, there’s always the chance that somebody might be offended by their negative filmic portrayal, or even deny that events shown on screen did not actually happen. In that case, the creative team behind the biopics would need to have evidence and three interviews from people who said, “Yes, it happened,” to adequately defend themselves, Cox says.

“They can sometimes expect grumpy letters. But if it has been backed up and verified, even if it is being sued for defamation and it portrays somebody very negatively, you have the ultimate defense in the truth. If you’ve got the evidence, then crack on.”

Certain shows and movies haven’t shied away from bending the truth way beyond recognition to match their artistic ambitions. For example, the majority of Pam & Tommy—the Hulu miniseries chronicling the turbulent relationship between Mötley Crüe drummer Tommy Lee and model/actress Pamela Anderson—was a lie, according to Lee’s former bandmate John Corabi. Courtney Love also claimed that the show was causing Anderson “complex trauma.”

But Pam & Tommy being based on a 2014 Rolling Stone article helped to protect the show against any legal repercussions, according to Cox. “Just like Inventing Anna,” which was released in February on Netflix and was based on a New York magazine article about convicted con artist Anna “Delvey” Sorokin, “they were actually based on articles, rather than purporting to be a documentary about the individuals’ lives in question. As long as they’re clear about what angle they’re coming from, that can help to protect them.”

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Meanwhile, Blonde was based on the book of the same name by Joyce Carol Oates. “It’s based on a fictionalized book, rather than purporting to be a documentary,” Cox adds. That did not, however, stop Blonde’s writer and director, Andrew Dominik, from being severely criticized for his depiction of Marilyn Monroe; critics labeled the film cruel and exploitative for its treatment of the actress, who died in 1962.

“In principle, it’s a lot easier to make a show or movie of someone who is dead,” Cox says. “In the U.K. and the USA, you cannot defame the dead. So there is no claim for defamation for defaming the dead. A defamation claim is personal to the individual. If it’s defamation, it needs to be that there are events depicted as true events that seriously harm your reputation in the eyes of the public.”

The Crown’s depiction of Queen Elizabeth II and the royal family became so controversial that, with its recently released fifth season, Netflix decided to add a warning that states: “Inspired by real events, this fictional dramatization tells the story of Queen Elizabeth II and the political and personal events that shaped her reign.”

Cox believes that Netflix did this with “an element of protecting themselves,” and that this was their way of “clarifying for the public at large” that The Crown is a “work of fiction.”

Last month, it was revealed that Prince Philip seriously considered suing Netflix after a Season 2 episode of The Crown in which it was implied that he was to blame for his sister’s death in a plane crash in 1937. According to Insider, he ultimately decided not to sue the streamer out of fear that it would backfire by drawing an “enormous amount of attention.”

For those who do decide to sue for defamation, however, they’re actually more likely to succeed in the U.K. than the U.S.

“In the U.S. there is a requirement for malice. You need to know that the defamatory statement harmed the individual’s reputation and it needs to have been made from a place of malice,” Cox says. “We don’t have that requirement in England. It could have been an honest mistake. … Historically, anyway, it was considered that it was harder to get a defamation case off the ground in America.”

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It’s increasingly hard to predict who is going to win in these kinds of cases, though. When Olivia de Havilland sued FX and Feud: Bette and Joan for defamation in 2018, the actress firmly lost her lawsuit, as the court insisted Feud was protected by the First Amendment. World champion chess player Nona Gaprindashvili, meanwhile, was more successful when she sued Netflix and The Queen’s Gambit. In the final episode of the miniseries, it was declared that Gaprindashvili had “never faced men,” when in reality, she had played against several male opponents. In September 2021, nearly a year after The Queen’s Gambit had aired on Netflix, Gaprindashvili sued Netflix for $5 million. A year later, the case was settled, although the details of the deal were left undisclosed.

“Even though it was a work of fiction, The Queen’s Gambit depicted real-life events. So the court was able to say, ‘There’s a good argument that the public could assume that what you’re saying about her never having played men was true,’” Cox explains. “She had a solid legal basis for her claim. But then the case settled, so we don’t know how that would have played out in the courts.”

Ultimately, that’s how most of these cases conclude. “Things settle in litigators. Generally between 90 to 95 percent of these cases settle before they get all the way to trial. That’s just the way it is,” Cox says.

Considering the hundreds of millions of dollars that these biopics could make for movie studios, networks, and streamers, any costs from these kinds of legal hurdles are usually just a drop in the ocean, as well as more publicity. More often than not, they’re a risk worth taking—even as audiences continue questioning how truthful these stories should or shouldn’t be.

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