The Real George Costanza and the Right to Privacy
This past fall, I started watching one of the most successful TV shows ever made: not Game of Thrones, not Breaking Bad, but Seinfeld. The show follows comedian Jerry Seinfeld and his three friends: Cosmo Kramer, Elaine Benes, and George Costanza. George was instantly my favorite. He’s short, stocky, bald, dramatic, and incredibly unlucky with women and work. He resembles so many grumpy New Yorkers—but, allegedly, he’s based on one New Yorker in particular, Jerry Seinfeld’s former pal Michael Costanza. This is where it gets juicy.
Michael Costanza filed a $100 million lawsuit against Jerry Seinfeld, Larry David (the show’s co-creator), and NBC for invasion of privacy, defamation, and being cast in a false light. Like George, however, Michael Costanza was unlucky. The court dismissed his lawsuit before it even went to trial, calling Costanza’s allegations “claims that the New York State courts have rejected for decades.”
As attorneys Neil J. Rosini and Michael I. Rudell explain, “[u]nder the law of both New York and California . . . the stories of real people often can be used without authorization or payment . . . .” While there’s an exception for advertising and other commercial purposes—for instance, you can’t claim that Jay-Z adores your company’s moisturizing cream without his permission—both states typically favor storytellers. Interestingly, the justification for this outcome differs under California and New York law.
California courts focus on the First Amendment’s free speech protections. In Sarver v. Chartier, for instance, the Ninth Circuit dismissed Sergeant Jeffrey Sarver’s claim that he was the inspiration for the main character in the Oscar-winning film The Hurt Locker. The court held that the film constituted “speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays.” The Sarver court, however, recognized that not all speech is “fully protected by the First Amendment.” In particular, speech that “appropriates the economic value of a performance or persona or seeks to capitalize off a celebrity’s image in commercial advertisements is unprotected by the First Amendment against a California right-of-publicity claim.” Nevertheless, The Hurt Locker did not fall under this unprotected category.
Michael Costanza brought his case in New York, but it’s worth asking: would he have won in California? I don’t think so. Like The Hurt Locker, Seinfeld would likely be deemed fully protected speech. It wasn’t the “economic value” of Costanza’s persona nor his “image” that made Seinfeld successful—it was the clever scripts and talented actors who transformed the mundane aspects of life (like waiting in line at a restaurant) into hilarious skits. Thus, under California’s approach, Seinfeld is likely safe.
New York courts, by contrast, tend to focus on state law. Specifically, sections 50 and 51 of New York’s Civil Rights Law provide the only basis for a right of privacy in the state. These sections prohibit using a person’s “name, portrait or picture” for “advertising purposes, or for the purposes of trade” without consent. Outside of “advertising” and “trade” purposes, storytellers have a large degree of freedom.
So, what exactly does “advertising” and “trade” purposes mean? The Civil Rights Law does not define these terms, but New York courts have interpreted them narrowly. For one thing, newsworthy events and matters of public interest do not violate the state’s right to privacy. This “applies not only to reports of political happenings and social trends . . . but also to news stories and articles of consumer interest . . . .”Likewise, the law rarely interferes with fictional works. As Hampton v. Guare confirms, “works of fiction and satire do not fall within the narrow scope of the statutory phrases ‘advertising’ and ‘trade.’” This seems to have been the fatal blow for Michael Costanza’s case. As the court concluded, “[t]he Seinfeld television program was a fictional comedic presentation [and thus] does not fall within the scope of trade or advertising.” Case dismissed.
But, as first-year law students quickly learn, the law is full of exceptions. Even in New York, storytellers may get in trouble for using real people in fictional works if the storytellers are not transparent about the fictional nature. The case Spahn v. Julian Messner, Inc. provides a shining example. Baseball star Warren Spahn sued the publisher of a purportedly true biography, which contained “dramatization, imagined dialogue, manipulated chronologies, and fictionalization of events.” Despite the exceptions for newsworthy events and fictional works, this faux biography was—in a sense—neither: it was too false to qualify as factual reporting, and its purportedly true nature disqualified it from being deemed a fictional work. Ultimately, the court would not allow the publisher to exploit Spahn’s celebrity for its own “commercial benefit.”
Could Costanza have won by referencing Spahn? Again, I don’t think so. Seinfeld never claimed to be true. The show was clearly fiction—not a supposed documentary of Jerry Seinfeld’s life—and thus outside the bounds of New York’s Civil Rights Law.
All in all, Michael Costanza never stood a chance under the laws of New York or California. If you love George’s character like I do, however, you might feel sad at the thought of him (or his real-life counterpart) leaving the court empty-handed. There are a few points to consider here. First, from a factual point of view, Michael Costanza is not entirely sympathetic. The court’s opinion suggests that he accepted Seinfeld when it premiered; he even appeared on an episode in season 3. Costanza waited until after the show’s final episode to bring his claim, which suggests that he may have been trying to capitalize on his former friend’s success rather than prevent his portrayal on television. This delay also hurt Costanza’s claim from a legal point of view. Claims under New York’s Civil Rights Law “must be brought within one year of when a person learns of the improper use of his name or likeness,” so Costanza’s claim fell outside of the statute of limitations. From a fairness perspective, it’s a tougher case. Our law needs to balance encouraging creative expression with respecting individuals’ privacy. As it currently stands, New York and California law favor expression, so no soup for you, Costanza.