Jerry Heller, NWA’s manager in the band’s early days, didn’t need to give permission for a character in last year’s Straight Outta Compton to be named after him and to portray his role in the band’s success, a California judge ruled last week.
Heller, played by Paul Giamatti in the movie, had filed a lawsuit against NBC Universal, the film’s writers, the entirety of NWA (Ice Cube, Dr. Dre, Easy E’s estate, etc) and other affiliated with the film, claiming he had never given his approval or consent to be included in the movie. As a result, Heller’s lawsuit claimed, his privacy was violated, and the way in which he was portrayed in the film–as a kind of villain– constitutes libel and defamation.
This is where it gets fun: According to the lawsuit, filed by Heller earlier this year, Heller had an oral agreement with the surviving members of NWA and the writing staff of Straight Outta Compton and met with the writers several times between November 14, 2002 and August 16, 2008, preparing at least four drafts of the original screenplay. The agreement stipulated the screenplays were Heller’s property. During this time, Heller also began writing a book on his former management company, Ruthless, and NWA’s rise to stardom in the early 1990s. Heller believes the movie was based at least in part on a 2008 draft of the screenplay that was based on Heller’s book, “Ruthless,” and that the screenplay was sold without Heller’s consent or approval.
“Plaintiff did not authorize anyone to use his name or likeness or otherwise consent to this portrayal in the film,” the lawsuit says. “Plaintiff never approved to this portrayal. Defendants did not even bother to give the character a fictional name, like ‘Gary Beller,’ for example. It is beyond dispute that the entire audience of the film would reasonably understand that the character in the film is a portrayal of , in actual fact, Plaintiff himself.” Heller was not compensated for his likeness in the film nor has he seen any other benefits from the film. Furthermore, “Heller is the ‘bad guy’ in the movie who is solely responsible for the demise of NWA; Heller is a sleazy manager who took advantage of defendants Easy E, Dr. Dre and Ice Cube, effectively, by stealing their money; Dr. Heller steered Dr. Dre and Ice Cube away from hiring an attorney to review any contracts so they could never get paid,” and a number of other abuses Heller claims amount to defamation of character.
The judge, however, didn’t buy it.
In the decision, released March 30, Judge Michael Fitzgerald of the US District Court for the Central District of California, ruled that Heller’s argument that it was in the public interest to hold the movie’s writers accountable for using his likeness without his permission was, in truth, rooted in the First Amendment, “which permits film producer to depict matters in the public arena without fear of liability…As already discussed, the subject matter of the film involves matters of public interest. The film concerns a public controversy over Plaintiff’s tumultuous relationship with the ‘hugely successful’ NWA. Because there is little doubt that NWA has had an immense influence on popular culture both domestically and internationally, the role Plaintiff played in NWA’s rise to stardom is certainly a matter of public interest. The First Amendment, therefore, insulates Defendants of any liability for misappropriations of likeness.” As a result, Heller’s claim on this front was dismissed.
He’s not done yet, however: the judge cleared Heller’s way to continue pursuing a lawsuit against the defendants on claims of defamation, but the judge “makes clear in his order that the plaintiff must spell out the specific statements or actions of the film’s characters deemed to have been untrue and hurt his reputation,” according to The Hollywood Reporter.
“What’s more, the judge agrees with the defendants that Heller is a ‘limited purpose public figure,’ meaning that in order to prevail in his defamation claims, he’ll need to show ‘actual malice,’ meaning knowledge of falsity or reckless disregard of the truth,” THR continues. “The judge could have picked from another number of different cases as support for this proposition.”
If the judge’s decision stands, it could provide increased protection for film producers, writes Michael Keyes, an intellectual property and copyright attorney with the Seattle-based law firm Dorsey & Whitney. It’s an even stronger standing than another right of publicity case in the 9th Circuit court, also in California, in which Sergeant Jeffrey Sarver, who was portrayed in the film The Hurt Locker without that movie’s producers or writers getting his permission first, did not have the same investment of time or finances to be considered a public figure. Instead, Sarver was determined to be a private person who “expressly disavowed the notion that he sought to attract public attention to himself,” the judge in that case ruled.
As Keyes notes, “Unlike Sergeant Sarver, Mr. Heller does not appear to shy away from the limelight. In fact, Mr. Heller alleged in his initial complaint that he is a ‘highly successful and respected business professional.’ He also claims that he struck a deal to collaborate with defendants on a screenplay on the story of NWA. These facts alone would arguably seem to take Mr. Heller’s claim outside of The Hurt Locker holding.”
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