Under the law of both New York and California—where most decisions concerning entertainment law are rendered—the stories of real people often can be used without authorization or payment, not only in biographies but also fictionalized films, books, and plays. A recent decision interpreting California law, Sarver v. Chartier,1 upheld that right on First Amendment grounds. New York cases, on the other hand, usually turn on strict interpretation of Sections 50 and 51 of the state Civil Rights Law and rarely reach the constitutional principle on which Sarver was based. They also can require some reconciling one with another.
Both Sarver and cases interpreting the New York statutes differentiate protected storytelling from commercial uses of identities such as in advertisements and on merchandise, which require permission from the persons depicted. Sarver warns that poaching a plaintiff’s “developed economic interest” falls outside First Amendment protection, and New York decisions include fictionalized biographies posing as fact within the unprotected commercial category.
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