“The story, all names, characters, and incidents portrayed in this production are fictitious. No identification with actual persons, places, buildings, and products is intended or should be inferred.”
The character of Jake LaMotta is fictional, and any similarity to Jake LaMotta is purely coincidental…
This and disclaimers like it on movies and TV shows have driven me crazy for a long time. So often the text is an obvious lie. I first began obsessing about it during the early days of “Law and Order,” when Dick Wolf’s show would herald the fact that its episodes were “ripped from the headlines,” then end with a disclaimer that said it was completely fiction. Sometimes, an episode was obviously based on a specific crime and specific individuals, and the actors were made up to look like the actual criminals. The disclaimer was and is a lie, and since it was obvious, why did they bother? Legally, it does no good to publish a boilerplate disclaimer that says, “We’re not really doing what any fool can see we are doing, ” except to discourage potential lawsuits by stupid people. I am of the (minority, unfortunately) position that it’s unethical for lawyers to author legally meaningless language like this for the sole purpose of misleading the ignorant.
The background of the disclaimer is interesting; Slate just published the story, which I realized I once knew but had forgotten.
The 1932 MGM film “Rasputin and the Empress”, was based on the events leading up to the fall of the Romanovs, and starred John, Ethel and Lionel Barrymore. Its most famous sequence was a version of the antic assassination of Rasputin, an event largely known because of the book written by one of the assassins, Prince Felix Yusupov, portrayed as “Prince Paul Chegodieff” in the film. The film also suggested that the Prince’s wife, “Princess Natasha,” was raped by Rasputin—suggested but not shown, since Rasputin was played by John Barrymore (Drew’s grandfather) and the princess was played by his sister, Ethel. Princess Natasha was the avatar for Princess Irina Alexandrovna of Russia, who, like her husband Prince Felix, had escaped Russia before all the royals were killed.
Yusupov, living in Paris, heard about the film and decided that since audiences would recognize him as the fictional killer of Rasputin, they would also assume that his wife was raped by Rasputin. She wasn’t, or if she was, only she and the Mad Monk knew about it. Officially, Irina and Rasputin had never met. An MGM researcher had pointed out this factual discrepancy to the studio during production and warned that the Yusupovs could sue, but was pooh-poohed off the lot. She was correct, however, for Irina Yusupov sued the studio, and after watching the movie twice, the British jury awarded her £25,000, or about $125,000. MGM took the film out of circulation for decades, and when it turned up on Turner Classic Movies, the pseudo-rape scene was gone.
MGM began “Rasputin and the Empress” by stating, “This concerns the destruction of an empire … A few of the characters are still alive—the rest met death by violence, ” which told audiences that these fictionally-named characters were meant to represent real people. After the law suit, films and TV shows put the disclaimer on everything, even when there was no way to deny that the characters were based on real people, since they had real people’s real names. Slate recalls a really silly example, noting, “The Jake LaMotta biopic ‘Raging Bull’ credits LaMotta as a consultant and cites his memoir as a source text just minutes before asserting that he is the film’s entirely fictional invention.”
Ethics Alarms 
Yeah, somehow I don’t think that fig leaf of fictional would protect me if I wrote that SCOTUS fanfic that’s been bouncing around in my skull about Scalia faking his death* and going off on adventures.
*Because he’s an immortal werewolf, duh. Why else did he need to go hunting all the time at his age when a fall would be deadly. And those anti-gun control positions? He better than anyone knew people needed to be armed with silver bullets just in case.
Don’t forget to have a good reason for him to bother, like zombie rights or how murder laws need amending to handle the differently-living.
The constitution doesn’t mention zombies therefore they have no rights. This is Scalia we’re talking about.
Zombies have rights but they can’t sue because they always end up eating their lawyers.
You wouldn’t need it. The dead can’t be defamed. Unfortunately.
In this country they cant but I believe they can be in England.
I did my MA thesis many years ago on an obscure (well, he wasn’t at the time) pre-Shakespearean English playwright named John Lyly. In at least one of his prologues, he begs his audience not to “apply pastimes” (i.e., to look for topical references to contemporary events). Most critics, including me, regard that plea as not merely disingenuous but actually intended to call attention, apophasistically, to precisely that kind of reading.
That is, it might never occur to the average person that a particular character in a book or a movie is meant to represent, say, a familiar politician. But tell them, explicitly, that there’s no satire intended, and they’ll start wondering why you thought you had to say so. The fact that the disclaimer is now ubiquitous renders it completely irrelevant–neither authentic nor openly inauthentic.
I did not know that about Lyly…great point. Of course, that was at the beginning, so its virtually part of the work.
For pure fiction which may have some similarities to real people and events: “This story is made up, not though necessarily out of whole cloth because like most stories it is a pastiche concocted out of thoughts that giggled, gurgled, or gargled up out of my subconscious, and things I think I thought were original probably or possibly aren’t because, what is actually new under the sun? I think it’s possible, perhaps likely, that if you look hard enough you will be able to find real people, places, things, and events which someone could say I incorporated into my story, and that may be true, but if so it wasn’t conscious, at least not until I wrote it, and then of course it was, and whether I attributed the idea to my genius or it was plagiarism of reality is a pointless exercise that only the deepest of hypnosis would shed some light on even though we all know that hypnosis isn’t 100% reliable because memories can and often are conflated or just simply false, so there….reader beware…and if you want to sue me go ahead because I’m broke.”
At least that one’s honest!
Hahaha. This disclaimer must have really pissed off Scorsese and De Niro. Both of them worked extremely hard to capture the rage that was Jake LaMotta. Obviously some incidents in LaMotta’s life could not be shown on film as this short article makes clear: http://www.shortlist.com/entertainment/30-knockout-raging-bull-facts
Mr. Marshall,
Does this also apply to “THE CONTENTS OF THIS EMAIL ARE CONFIDENTIAL” and similar such disclaimers at the end of most emails from lawyers/firms? Are those at all binding?
No. Such warnings are wishful thinking.