easternscript.com/wp-content/uploads/Eastern-Script-Newsletter_Dec-2024.pdf - see 'A Likeness from Beyond the Grave: Portraying Deceased Historical Figures'
The article above investigated the basics of portraying public figures in film/TV productions. In this short segment, we will discuss the portrayal of deceased historical figures. According to a lawyer contact, the dead cannot be defamed like the living. In other words, an unflattering portrayal of a deceased person cannot be considered defamation. However, that does not mean that the clearance process is clear for such portrayals.
Even if defamation isn’t an issue, using a deceased person’s name, image, or likeness for commercial purposes, like in advertising, can cause problems. For instance, in 1997, a Dirt Devil ad featured Fred Astaire dancing with a vacuum, which caused enough backlash and set a precedent that resulted in laws like the “Astaire Bill.” This U.S. law requires permission from an estate or heirs to use a celebrity’s likeness commercially.
Additionally, postmortem publicity rights have been snapped up by companies looking to profit from the commercial use of likeness. If you want to use the image of Einstein, you will need permission from the owner of his ’rights’ (at time of writing Hebrew University). CMG Worldwide, a company that specializes in intellectual property licensing, also appears to represent the estates of James Dean, Ingrid Bergman, Jack Kerouac, Duke Ellington, Jesse Owens, and even people like Frank Lloyd Wright, Amelia Earhart and Malcolm X. Beyond legalities, there’s the ethical side of things. Imagine portraying a well-loved historical figure in a way that stirs controversy or offends fans or institutions tied to their legacy. Even if it’s legally allowed, public opinion might not be so forgiving.
A lawyer we consulted suggested that producers use disclaimers and make details—like birth dates or nationalities—clear to avoid confusion or unnecessary backlash. The further back in history a person lived, the less risky their portrayal tends to be. Portraying Cleopatra or Leonardo da Vinci is usually safer than dealing with someone more recent.
Portraying deceased historical figures in film and television involves navigating complex legal, ethical, and social considerations. While defamation laws don’t apply to the deceased, postmortem publicity rights, commercial use, and estate permissions can present challenges. Additionally, the risk of offending public opinion, fans, and institutions connected to the figure’s legacy should not be overlooked.
By understanding these complexities and taking a respectful approach, filmmakers can create authentic portrayals while avoiding potential pitfalls and controversies.