Roman à clef characters When does the filmmaker risk a trial?
The thriller “Loot” with Ben Affleck and Matt Damon in the roles of police officers from South Florida became the subject of a high-profile dispute over the limits of creative freedom.
Two officers, Jonathan Santana and Jason Smith, claim that the film “contains too many real details” taken from a real 2016 case in which more than USD 21 million concealed in buckets, in which they played key roles as investigators. Following the film’s premiere, the defendants intended to create the false impression among their friends, family members, and co-workers that they had committed the crimes depicted in the film, namely participation in a conspiracy to steal proceeds derived from drug trafficking, the murder of a supervisor, the arson of residential buildings, and the killing of a federal agent.
Although the film neither identifies the officers by name nor suggests that they were involved in its production, they brought an action against the production company, Artists Equity, seeking damages, reimbursement of legal costs, and a public retraction, alleging that the film had damaged their reputation. The producer’s lawyers answer that the film neither portrays a true story nor depicts real persons, as expressly stated in the disclaimer included in the closing credits. They further contended that the plaintiffs had failed to identify any character allegedly based on them.
Hollywood dispute in the light of Polish law
From the perspective of Polish civil law, the case primarily raises issues concerning the protection of personal rights, particularly the right to one’s good name, honour, privacy, and image. Under Articles 23 and 24 of the Polish Civil Code, a person whose personal rights have been infringed is entitled to seek claims for infringement, the removal of its effects, damages, and compensation for non-pecuniary harm. Therefore, it is crucial to determine whether there has been an unlawful violation in a given case, i.e. whether the creators have exceeded the limits of artistic freedom, understood as the freedom to create fiction, which, however, cannot serve to violate the dignity or honour of specific persons. Therefore, the key question is when the protagonist of an artistic work remains only an “inspiration”, and when it becomes a recognizable representation of a specific person.
Three models of the relationship between fiction and reality
First, where a work portrays an identifiable person under their real name, the author should refrain from depicting that person in a false or defamatory manner. Otherwise, personal rights may be violated.
Second, the issue may also arise in relation to so-called roman à clef characters, namely fictional characters that are readily identifiable as specific real persons. It is a situation in which the creator does not use his real name, but constructs the hero in such a way that the audience can easily decipher who he is. In such a case, it is also unacceptable to ridicule a given person or attribute false, negative features to them. Creative freedom cannot serve as a tool to insult, account for or stigmatize a particular individual.
Third, a work may include an anonymous character who, although sharing certain characteristics with an existing person, is introduced primarily to illustrate the broader message or theme of the work rather than to portray that individual. In such circumstances, the ideological or artistic message conveyed by the work assumes primary importance. In such a situation, the creator will generally remain within the limits of permissible fiction, even when the character is portrayed with negative traits. The key exception arises when the depiction leads to the character being reasonably identified with a specific real person.
What does the Supreme Court say?
The case law of the Supreme Court provides that “where a character appearing in a book is portrayed in such a manner that its identification does not give rise to any difficulty, the author is subject to certain obligations. It is not permissible to convey to readers false information concerning such a person, and, with regard to value judgments, the author should refrain from ridiculing that person or presenting a negative or inaccurate portrayal of them.” Artistic freedom does not exempt creators from the obligation to respect the personal rights of others. A creator may not abuse the literary work as a means of insulting or offending individuals or of infringing their rights to privacy and personal intimacy. The literary genre used by the author does not change these limits of artistic freedom.”[1]
In practice, the court focuses primarily on whether an average viewer – rather than a specialist or expert – would be able to identify the protagonist with a specific real person. It also examines whether the characteristics or conduct attributed to that character could significantly harm that person’s good name, honour, or privacy. The court also takes into account a number of factors, including the number and accuracy of the “real-life details” presented in the work, such as the location, profession, or circumstances of the events. Other relevant considerations include the nature of the conduct attributed to the character, whether the production is fictional or documentary, its audience reach, and the manner in which it draws inspiration from real events. Disclaimers included in the closing credits, stating that any resemblance to actual persons is purely coincidental, may be taken into account by the court; however, they are not decisive. If for the average viewer the connection of the character with a particular person is obvious, such a disclaimer will not exclude liability.
“Heweliusz” vs. “Loot” – Polish and American context
A similar problem can be observed in relation to the series “Heweliusz”, which draws inspiration from the disaster of the ferry “Jan Heweliusz”, a case previously discussed on our blog. From the outset, the creators emphasized the fictional nature of the series and made clear that it does not constitute a faithful reproduction of real persons or the precise chronology of events. Most of the names and surnames have been changed, and the characters are composites based on several real-life biographies. This approach was intended to strengthen the dramatic structure of the series while also making it more difficult to identify the characters unequivocally with specific individuals. Despite attempts in public debate to link certain characters with real individuals, such identification may be less likely from the perspective of an average viewer, particularly given the passage of thirty years since the events in question and the clearly fictional nature of the production. This, in turn, supports the view that the boundaries of permissible artistic freedom have not been exceeded.
Transposing this reasoning to the ongoing dispute between Santana and Smith and the creators of Loot, the central issue of the legal analysis remains unchanged. On the one hand, the producers emphasize that the film is a work of fiction and that its characters are not based on real individuals. On the other hand, the police officers point to the presence of “too many real-life details” and to the reactions of people around them, who allegedly began to identify them with the criminal characters portrayed in the film. In the Polish legal context, a court applying analogous criteria would therefore assess which of these competing interests prevails: whether the work is predominantly a universal fictional creation, or whether the elements allowing for the identification of a specific individual are more significant. The more precise the references to actual events and the roles performed by specific individuals, the weaker the argument that the work is based only on “loose inspiration.”
How to Safely Create Fact-Based Films: Legal Considerations for Filmmakers Conclusion for Producers and Creators
Both the case of “Heweliusz” and the dispute concerning Loot demonstrate that the boundary between permissible inspiration and an infringement of personal rights is not determined solely by the creators’ own statements, but above all by how the work is perceived by the average viewer.
In this context, the practical implications for producers and creators are particularly important. Using real-life stories requires not only artistic sensitivity but also proper legal and ethical preparation. This includes assessing the risk of infringing personal rights at an early stage, making appropriate adjustments during script development – such as combining several biographies, modifying key facts, or changing identifying details – and obtaining legal advice before production begins. The use of a person’s real name, surname, or easily recognizable image without their consent should remain an exception, generally justified only when the aim is to accurately present facts rather than to create a sensationalized narrative. The mere statement that a work is “loosely based on real events” does not release its creators from legal responsibility.
If the combination of details allows a specific person to be identified and attributes false or reprehensible conduct to them, the risk of claims for infringement of personal rights remains significant. For creators and producers, this means that the potential legal risks should be assessed already at the conceptual stage of the project, rather than only after the work has been released.
[1] Judgment of the Supreme Court of 28 March 2018, Case No. IV CSK 317/17, Legalis No. 1807220.
