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Can the public statements of public figures be freely incorporated into the dialogue of fictional characters in a screenplay?

By Robert L. Seigel

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Question: Can the public statements of public figures be freely incorporated into the dialogue of fictional characters in a screenplay or would this constitute a violation of some sort? For example, can I take the verbatim words spoken or written by a TV televangelist or religious leader or church spokesman (from a public speech or interview or broadcast or book) and put those words into the mouths of purely fictional characters? If Pat Robertson or Jerry Falwell once stated XYZ, can I have a wholly fictitious screenplay character likewise utter XYZ (verbatim) -- given that my fictitious character is clearly not otherwise "based upon" Robertson or Falwell?

There are two fundamental principles concerning copyright which you should bear in mind: (1) copyright law protects expressions of ideas and not ideas per se; and (2) copyright occurs on creation.

Many public statements come from speeches which were created as the expression of ideas by their creators and “fixed” in some manner whether it is on paper, on audio and/or visual recordings or on a hard drive ready for printing. Such speeches are protected by copyright law and any use of such speeches beyond a use which could be deemed an incidental or ”fair use” of the work (which is a defense to copyright infringement and a separate topic entirely) or pass muster under a First amendment argument would constitute copyright infringement.

Many writers and producers have wanted to use Martin Luther King Jr.’s speeches but they have met some resistance from Dr. King’s estate (including Steven Spielberg who is planning a Martin Luther King biopic). Placing such copyrighted speeches in the mouths of fictitious character also could bring a claim for copyright infringement. If a person’s speech is being used for a specific purpose such as parody, the use may be a permissible one as long as not to much of the speech is taken by the creator of a work.

If someone adlibs a speech extemporaneously, one could make an argument that such speech is not a copyrighted work since it is not fixed in some manner. However, once such extemporaneous speeches are fixed in a medium such as an audio or audio-visual recording, then the work has been not only created but fixed by recording.

Although the speeches or interview responses may be expressions subject to copyright protection, the ideas stated in the speeches are not subject to copyright protection. Therefore, if a fictitious character paraphrases the ideas found in a person’s speech, the likelihood of a copyright infringement claim diminishes and can even disappear depending on the nature of the fiction character which could give rise to separate personal rights claims such as defamation and rights of publicity if the fictional character is too recognizably similar to the actual speechmaker.

This is a complicated area of the law and seeking legal counsel in such matters is a prudent and necessary measure.

About Robert L. Seigel

Robert L. Seigel (Rlsentlaw@aol.com) is a NYC entertainment attorney and a partner in the Cowan DeBaets Abrahams & Sheppard LLP law firm which specializes in the representation of clients in the entertainment and media areas.

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Screenwriting Article by Robert L. Seigel

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