Samantha To
In the past several years, Hollywood has “taken on a particular mission: to reclaim a rarified group of famous women—nearly all of them white, many of them beautiful and blonde—that the mass media made mincemeat of in the ‘80s and ‘90s.”1Spencer (2021) and Pam & Tommy (2022) are examples of such attempts to illuminate and vindicate “mistreated” and “misunderstood” women like Princess Diana and Pamela Anderson through portraying them in biographical films and television series.2 Yet, these two biopics remain highly controversial, for what were glamorized as feminist reclamation projects “to right a public wrong” are, in reality, on-screen dramatizations of “the most difficult and traumatic episodes of these women’s lives.”3 Most importantly, they were produced without these women’s consent.4 How is this legally possible?
The right to portray an individual’s life story in a creative work—i.e., “life story rights”—is not legally recognized in the US (or the UK, where Spencer was co-produced).5 "As long as the information about a person was obtained lawfully, others are free to make content about them and profit from it without seeking consent.”6 A public figure, whose information is readily available in the public domain, rarely has a claim over their own life story. Further, while violations of “life story rights” can technically be “brought under state-specific right of publicity statutes” in the US, which protect “an individual’s identity . . . from unauthorized commercial exploitation,” it is harder to establish commercial exploitation in a high-profile context.7 For instance, New York courts have held that its right of publicity statute is to be “narrowly construed by creating a broad privilege for the legitimate dissemination to the public of . . . matters of public interest."8
But what if the matter of public interest is precisely an unauthorized publicization of what should have been a private matter? Pam & Tommy was legally produced without consent, by basing its storyline on a 2014 Rolling Stone article—which the producers optioned the rights to—“that detailed how Pamela Anderson and Tommy Lee’s sex tape was stolen and then released.”9 Ironically, the nonconsensual biopic was justified by the producers as “a chance to tell the story and to get people to . . . understand how it was nobody’s business.”10 Pamela and close sources have strongly denounced the production as “re-opening a wound," identifying Pamela as a “survivor” of the sex tape leak over two decades ago that “forever scarred her life as [she] faced all manner of slut-shaming, misogyny and invasions of privacy."11 Pamela openly “refus[ed] to be victimized once again”, underscoring how nonconsensual biopics can amount to “retraumatization” rather than empowerment for the individual portrayed.12
It is not difficult to understand why Spencer’s filmmakers did not obtain life story rights—a typical move by biopic productions to guard against defamation or right of publicity suits, as they “exercise a good deal of creative license over a story which often strays from the truth of actual events.”13 First, except in Rhode Island, “the deceased cannot be defamed” in the US (or the UK).14 Second, Spencer distinguishes itself from a truthful retelling of events by claiming to be “a fable from a true tragedy” in its opening sequence.15
But does legality justify the nonconsensual, exaggerated depiction of Diana’s struggle with bulimia and the royal family? Spencer is presented as a story of empowerment by director Pablo Larraín, who called Diana’s divorce from Charles “a decision she takes for herself, realizing that her own identity matters more to her,” when in reality, Diana never made such a decision, out of concern for her children.16 To Larraín, Spencer was a space for “taking elements of the real, and then using imagination, to tell the life of a woman with the tools of cinema.”17 But to the woman who is so dramatically portrayed as a mentally disturbed victim that the only sympathy the audience feels for her “is the sort you feel for ailing people, not a lonely, flawed young woman,” the biopic is nothing but an exploitation of a woman’s private struggles for cinematic storytelling.18
Spencer and Pam & Tommy highlight the lack of legal recourse and the ambiguity around the revictimization and misrepresentation of high-profile women in biographical productions. With the continuous rise of this timeless genre, most people are likely to learn about a public figure’s life through a recent biopic than through a biography or a documentary.19 It is insufficient for filmmakers to justify their lawful but nonconsensual dramatizations of women’s personal lives on-screen, simply in the name of empowering the ‘victim’.
[1]Morgan Leigh Davies, Pam & Tommy Is Just A Newer, Nicer Stolen Tape, Bustle (Feb. 10, 2022), https://www.bustle.com/entertainment/pam-and-tommy-spencer-tammy-faye-false-reclamation [https://web.archive.org/web/20251102023524/https://www.bustle.com/entertainment/pam-and-tommy-spencer-tammy-faye-false-reclamation].
[2]Id.
[3]Id.
[4]See id.
[5] Emily Cox, "Based on a True Story”—the Legal Issues Around Biopics, Stewarts (Dec. 13, 2022), https://www.stewartslaw.com/news/based-on-a-true-story-the-legal-issues-around-biopics/ [https://web.archive.org/web/20251102023959/https://www.stewartslaw.com/news/based-on-a-true-story-the-legal-issues-around-biopics/].
[6]Id.
[7] Silvino Diaz, What are Story Rights? Protect Your IdentityWhat are Story Rights? Protect Your Identity, EPGD Business Law (Aug. 23, 2023), https://www.epgdlaw.com/what-are-story-rights/ [https://web.archive.org/web/20251102024326/https://www.epgdlaw.com/what-are-story-rights/].
[8] Pamela Jones, Can Too Much Fictionalization in “BioPics” and “DocuDramas” Void “Newsworthiness” in Right of Privacy Cases?, 28 NYSBA Ent., Arts & Sports L.J. 17, 17 (2017) (citing Messenger v. Gruner, 94 N.Y.2d 436, 445–46 (2000)).
[9] Amanda Chicago Lewis, Pam and Tommy: The Untold Story of the World’s Most Infamous Sex Tape, Rolling Stone (Dec. 22, 2014), https://www.rollingstone.com/feature/pam-and-tommy-the-untold-story-of-the-worlds-most-infamous-sex-tape-194776/ [https://web.archive.org/web/20251102025512/https://www.rollingstone.com/feature/pam-and-tommy-the-untold-story-of-the-worlds-most-infamous-sex-tape-194776/]; Cox, supra note 5.
[10]Davies, supra note 1.
[11]Id.
[12] Katherine Hennessey, The Ethics of Reproducing Trauma in Celebrity Biopics, The Prindle Post (Mar. 25, 2022), https://www.prindleinstitute.org/2022/03/the-ethics-of-reproducing-trauma-in-celebrity-biopics/ [https://web.archive.org/web/20251102025944/https://www.prindleinstitute.org/2022/03/the-ethics-of-reproducing-trauma-in-celebrity-biopics/].
[13]Id.
[14]Chloe Elkort Et Al., The Vermont Legislative Research Service, Defamation of Deceased Report 1 (2024); Cox, supra note 5.
[15]Jack Royston, Why Princess Diana Film ‘Spencer’ May Anger Prince William, Newsweek (Nov. 6, 2021), https://www.newsweek.com/why-princess-diana-film-spencer-may-anger-prince-william-kristen-stewart-1644471 [https://web.archive.org/web/20251102030838/https://www.newsweek.com/why-princess-diana-film-spencer-may-anger-prince-william-kristen-stewart-1644471].
[16]Id.
[17]Id.
[18] Brooke Henson, The Problem with Biopics: How Creative License Can Change the Narrative of Historical Figures, Brooke Henson (July 3, 2022), https://brookewhenson.com/the-problem-with-biopics-how-creative-license-can-change-the-narrative-of-historical-figures/ [https://web.archive.org/web/20251102031428/https://brookewhenson.com/the-problem-with-biopics-how-creative-license-can-change-the-narrative-of-historical-figures/].
[19]See id.