If you have spent any amount of time watching shows like Law & Order over the past thirty years, then you have likely seen this disclaimer flash across your screen: "The following story is fictional and does not depict any actual person or event."[1] While the characters’ names or the case’s outcome may be different, sometimes a character’s appearance or the crime perpetrated against them is anything but fictional.[2] TV shows and films are allowed to tell stories that are “ripped from the headlines”[3] in this way, but the entertainment value to audiences can come at a price to the victims whose real stories are being depicted.[4]

            In a 2020 article for Marie Claire, Alexandra Waterbury, a former principal dancer with the New York City Ballet, described how it felt when this happened to her.[5] A stranger sent her the trailer for an upcoming episode of Law & Order: SVU, which featured the case of a ballet dancer who was the victim of revenge porn.[6] Waterbury’s case gained publicity when, just two years earlier, she sued the New York City Ballet and her ex-boyfriend, Chase Finlay, after he shared revenge porn of her with other dancers in the company.[7] The characters that were supposedly depicting Waterbury and Finley looked like them, wore similar clothes, and were both professional ballet dancers. When Waterbury realized the episode was about her, she felt anxious about not having control over how her story was portrayed and angry that no one from the show had reached out or consulted her beforehand.[8] She “felt like they took advantage of [her], which is a hell of a thing to do to a survivor of sexual violence.”[9]

            Angie Epifano, a survivor of rape and a former student at Amherst College, described a similar experience after her story was retold in a 2013 episode of SVU. According to her, “[t]he episode was [her] life,” the fictional victim depicted her likeness and background, and watching it “made [her] relive every second of injustice and pain” she had experienced.[10] Epifano felt like she had “been stolen from, cheated out of the chance to tell [the writers and producers] how the story should go.”[11]

            Unfortunately, victims in this position often have no legal recourse when their stories are reproduced for a TV show or movie. American common law has recognized a right of publicity since the 1950s,[12] and as of 2020, 35 states have recognized the right either in common law or statute.[13] While specific protections vary by jurisdiction, the right typically protects a person’s “name, image, voice, signature, and likeness” from use for trade purposes without the person’s consent.[14] However, “trade purposes” generally does not include news reporting, “entertainment, and works of fiction.”[15] This means that shows like SVU are allowed to use crime victims’ likeness, persona, and life story without their permission.[16]

            Waterbury’s lawyers also told her as much when she consulted them about whether she had any legal recourse.[17] In New York, one of the top three states for film and TV production,[18] it is a misdemeanor for a “person, firm or corporation” to use “for the purposes of trade, the name, portrait, picture, likeness, or voice of any living person without having first obtained the written consent of such person.”[19] While this statute does not explicitly include protection for an individual’s persona, it has been construed to include “a representation which conveys the essence . . . of an individual.”[20] New York courts have held that there is an exception to this rule for “publications concerning newsworthy events or matters of public interest.”[21] Courts have further held that this “newsworthy and public concern exemption” includes “many types of artistic expressions, including literature, movies and theater.”[22] Therefore, because TV shows can be considered artistic expressions, they fall within the “newsworthy and public concern exemption” and Waterbury’s written consent was not required in order to use her likeness.[23] 

            It could be argued that these stories are a matter of public record and are fair game for reproduction in movies and TV shows, especially after there have been lengthy court proceedings or extensive news coverage. However, if you take that position, I urge you to put yourself in a victim’s shoes and consider the following: how would you feel if you turned on the TV and saw a person who looks like you acting out the story of the worst thing that ever happened to you? How would you feel knowing there was nothing you could do to stop it either? This is not to say that news outlets should be prohibited from reporting on court cases or other matters of public interest, especially if they adhere to ethical journalistic standards. 

            Ultimately, someone who is the victim of a crime did not choose for that to happen to them, but they should have some choice in how their story is told going forward. They should also have the option to not have their story told at all. By establishing a federal right of publicity that protects against the unauthorized use of a person’s likeness or other indicia of their identity for entertainment purposes, we can give victims across the United States that choice back.