Facebook Movie Skirts Legal Lines

October 1, 2010

By Jean-Luc Renault

Daily Journal Staff Writer

Hitting big screens today, the motion picture “The Social Network” combines the portrayal of real-life people with fictionalized events but without the filmmakers securing the life rights to the biopic's central characters.

In other words, the perfect breeding grounds for a lawsuit.

The film tells the story of Facebook's Mark Zuckerberg – played in the film by actor Jesse Eisenberg – the Harvard dropout with questionable social skills who went on to build the world's largest and most influential social networking website.

So far it's struck a chord among many film critics, but how Facebook or its founder responds to the film's fictionalized scenes after the movie's worldwide release remains to be seen. And based on the sheer size and net worth of the Palo Alto-based social media giant, such unauthorized storytelling carries inevitable legal risks.

So why would the film's creators, including famed director David Fincher and screenwriter Aaron Sorkin, open themselves to such a liability?

Entertainment lawyers said that those behind “The Social Network” have two things going for them – the First Amendment and the fact that high-profile court disputes can draw even more unwanted attention than the works that prompted them.

But other Hollywood insiders said the film's approach is riskier than most.

“I was struck by the filmmakers being quoted as acknowledging that their fidelity was to the story and not to the facts,” said Richard Marks, a former studio-side business and legal affairs executive.

“You have First Amendment protection and artistic license, but it's unusual they didn't get the life rights to do the movie,” added Marks, who is now an attorney with entertainment law and consulting firm The Point Media. “In granting life rights, you explicitly give the right to dramatize certain events.”

The film acknowledges in a disclaimer that some of the events depicted may have been fabricated.

In his journey from awkward teenager to 20-something billionaire, the film shows Zuckerberg exacting revenge on a former lover, alienating friends and betraying business partners, giving rise to two federal lawsuits over who really invented the website in the process.

The two lawsuits settled, one of them reportedly for $65 million before the plaintiffs recently re-opened the case for more money, but they provided much of the fodder for the book on which the film is based, Ben Mezrich's “The Accidental Billionaires: The Founding of Facebook, A Tale of Sex, Money, Genius, and Betrayal.”

A spokesman for Sony Pictures Entertainment, the studio behind the film, declined to comment.

Facebook did not respond to queries seeking comment, but has called the film and the book “fiction” in previous statements.

It is the gray area between truth and fiction where filmmakers can expose themselves to legal liability, according to Neville Johnson, a partner with Johnson & Johnson in Beverly Hills who specializes in defamation and right of publicity cases.

“Anything in the public eye or a matter of public interest can be written about or filmed,” Johnson said. “Where it gets trickier is when you fictionalize accounts of what happens in a public figure's life. Now you're looking at a defamation situation.”

A private company, Facebook has been valued at between $15 billion and $33 billion over the past three years, with Zuckerberg's personal worth being pegged at just under $7 billion in recent months.

Although damages in defamation suits can be tricky to prove and can range from case to case, the cost of a lawsuit against such deep-pocketed opponents could reach into the tens of millions of dollars.

Johnson also said that if filmmakers reveal true personal details in works that prove to be embarrassing to the people being depicted, it can also expose the creators to right-of-privacy claims.

But defamation and right-of-privacy allegations can be tough and costly to prove, and, in many cases, can cause more harm to individuals than the original works.

Marty Singer, a partner with Century City's Lavely & Singer who often represents people depicted in unauthorized biographical works, said that his clients rarely file defamation or right-of-privacy lawsuits.

“When somebody who likes to stay out of the public limelight tries to claim things are defamatory, it could potentially open up their life more and open up their reputation in the past,” said Singer. “That's why people don't file defamation suits.”

He added that lawsuits filed at the time a work is released can “bring more attention than it ever would have received on its own.”

That's one factor that the filmmakers, who have said in previous interviews that they allowed Facebook executives to read the script, could have been banking on when they made the movie.

Marks also saw it as a public-relations situation where the website's founder, having recently faced criticism for allegedly intruding on users' privacy, might just have to sit this one out and not fight against how his own personal life is depicted in the film.

“There's a good chance Zuckerberg won't do anything about this and the studios are counting on that,” he said.