From Dahmer to Pam & Tommy: A Look Into Unauthorized Biopics

Mar 13

Sebastian Stan as Tommy Lee and Lily James as Pamela Anderson in the miniseries *Pam & Tommy*, Hulu

In 1900, Georges Méliès released Jeanne d’Arc, a silent film based on the life of Joan of Arc, and since then the box office has been bursting with films about the life story of real people.[i] This year alone, Blonde, Elvis, Pam & Tommy, and The Dropout have earned Oscar and Emmy nominations, along with a combination of praise and backlash. Sometimes, biopics – biographical film dramatizing the life of a person – are created with the permission and input of the subject or their family.[ii] For example, Priscilla and Lisa Marie Presley met with and supported Baz Lurhmann, the director of Elvis, and heavily supported the film during awards season.[iii] Other creators have not found the support Luhrmann has. For example, Pamela Anderson continues to express her distaste with the Hulu mini-series Pam & Tommy (2022) chronicling the theft and release of her and Motley Crue’s Tommy Lee’s sex tape, and she is not alone in her dissatisfaction with her portrayal.[iv] Mark Zuckerberg disproved of his portrayal in The Social Network (2010), Samantha Barbash sued (unsuccessfully) over Jennifer Lopez’s depiction of her in Hustlers (2019), and the mother of a victim of Jeffery Dahmer recently spoke out about her late son’s story being shared in the Netflix miniseries Dahmer.[v]

So, how are these kinds of films and television shows allowed to be made? Unfortunately for their unwilling subjects, unauthorized biopics are almost always found to be legal.[vi] While there are various privacy torts under which action could be sought, the nature of most biopics makes them immune from this kind of suit. For example, an exception to the right of privacy is that the information is private and not of public interest, and the more famous a person is, it is more likely that the court will find their life story “a matter of public interest.”[vii] Other similar torts like defamation, which requires a false and harmful statement to be made about someone, or false light, just requiring objectionable falsehoods to be portrayed as true often do not stick because the film does not specifically purport to be exactly true.[viii] A lot of biopics, including Blonde and The Social Network, are films-based-on-books-based-on-real-life-events, and attest to be entertainment, not the news. Furthermore, different states have different rules on what publicity rights a person has, whether they can maintain them after death, and for how long, allowing for films like Blonde.[ix] Regardless of the subject being dead or alive, fictionalized or mostly factual, First Amendment free speech rights are almost always going to trump a famous public figure being upset about the way they were portrayed in a movie.

There have been numerous attempts by unwilling biopic subjects to sue the producers, directors, and actors for their unbecoming or allegedly nonfactual portrayals, the court has continued to hold that public figures have no right to sue for use of their life story.[x] Despite this, there are other actions that subjects can and have increasingly been taken. Pamela Anderson has not sued for her portrayal in Pam & Tommy but has been speaking to the press and taking interviews condemning all aspects of the miniseries since before it was even released. Since then, despite nominations, the miniseries struck out on Emmys, Critics Choice Awards, and Golden Globes. Anderson has recently announced a collaboration with Netflix where she is going to “reclaim her story” and has been met with much praise from the public.[xi]

Greater than the public backlash from Pam & Tommy was the public reaction to Blonde, a Netflix movie based on a purportedly fictional book about the life of Marilyn Monroe. Starring Ana de Armas as Marilyn Monroe, the film received highly polarized reviews from critics and audiences and ironically received eight Razzie nominations (a parody awards show awarding the worst films of the year) alongside a Best Actress nomination for Armas.[xii] While legally there is currently nothing Anderson or the estate of Monroe can do to prevent the production of these kinds of progress, public backlash and outcry has shifted in their favor, which may provoke a shift in creating films and television series about individuals’ life stories without their permission.

Because of this, while not legally required, there are many incentives for production companies and film studios to seek permission and guidance from the subjects of their projects. Elvis’ family praised the 2022 film online and accompanied the cast and crew to numerous awards shows to show their support, doing so increases the likelihood of positive public reception of a film and also increases the “icon” status the subject has. Britney Spears recently commented negatively about the prospect of Stranger Things star Millie Bobbie Brown playing her in a biopic, writing “dude I’m not dead,” in an Instagram caption.[xiii] In the age of social media, the more celebrities, their families and estates, and fans continue to speak out negatively about unauthorized biopics, the more likely it is that studios have second thoughts about moving forward on these projects without permission.

However, it is worth considering if, in our interconnected and media-riddled society, these kinds of unauthorized projects should be allowed. The public certainly does not rely on polished and published media to receive news and important information, so with the vast amount of information on every individual that is publicly available online, should the current laws regarding exemptions for public figures hold up? How many TikTok followers does someone need before Netflix can use their story without permission?

From the very early days of film, there have been biopics, and that trend will not likely soon end. While, under the current state of the law, unauthorized biopics of public figures are permissible, there have been increasing non-legal ramifications of pursuing these projects. Despite being without the threat of being sued, studios and actors should think twice before creating films and television series about real people.

[i] Biopics Films, FILMSITE

[ii] Biopic Definition, Collins Dictionary

[iii] Priscilla Presley Says “Elvis” Movie Brought Back A Lot of Memories, HOLA, Maria Loreto

[iv] Everything Pamela Anderson Has Said About “Pam & Tommy,” US Magazine, Eliza Thompson

[v] Social Network Made Up Stuff That Was Hurtful, The Guardian, David Batty, Jennifer Lopez Production Company Beats $40 Million Hustlers Law Suit, Entertainment Weekly, Joey Nolfi, Mother of Dahmer Victim Condemns Netflix Series, The Guardian, Ramon Antonio Vargas

[vi] Hustlers: When Does a Film Based on True Events Need Its Subject’s Life Rights?, Indie Wire, Chris O’Falt

[vii] The Delicate Art of Making a Bio Pic without Getting Permission, Front Row, Jeff Young

[viii] Privacy Rights and Celebrities: Truth, Fiction and Biopics, Lexology, Duan Morris LLP

[ix] Id.

[x] Id.

[xi] Pamela, A Love Story Works to Help Pamela Anderson Reclaim Her Narrative, CNN, Brian Lowry

[xii]Ana de Armas Scroes Oscar Nomination Day After The Razzies Trashed Blonde, Entertainment Weekly, Christian Holub