JLo Character Hustles Into Court Over Publicity Rights

Advertising Law

The inspiration behind the character portrayed by Jennifer Lopez in the 2019 film Hustlers has filed a $40 million publicity rights and defamation action against the production companies behind the movie.

Described as inspired by a true story based on “The Hustlers at Scores,” a 2015 article in New York Magazine, the movie depicted the experiences of Samantha Barbash and her colleagues working at gentlemen’s clubs, where they seduced wealthy patrons, drugged them and then used their credit cards to spend thousands of dollars.

Barbash pleaded guilty to conspiracy, assault and grand larceny in 2017. Although the defendants attempted to obtain a consent and waiver from Barbash for the production of the film and their portrayal of her, she refused. With “blatant disregard” for their lack of permission, the defendants moved forward and exploited her likeness and defamed her in the process, according to her New York federal court complaint.

“Defendants did not take caution to protect the rights of Ms. Barbash by creating a fictionalized character, or by creating a composite of characters to render JLo’s character a new fictitious one; rather, they engaged in a systematic effort to make it well-known that JLo was playing Ms. Barbash,” she alleged.

The defendants deliberately discussed the real-life events that transpired, the city where the acts took place, the exact place of Barbash’s employment, her plea information, legal proceedings and other information that made her identity “instantly connected” to the film, Barbash claimed.

The lawsuit seeks $20 million for the alleged violation of publicity rights and another $20 million for defamation, pointing to scenes that depicted Barbash using and manufacturing illegal substances in her home where she lived with her child.

To read the complaint in Barbash v. STX Financing, LLC, click here.

Why it matters: Barbash’s lawsuit, which is similar to others filed by individuals who found themselves the basis for television shows or movies, will likely face an uphill battle based on the First Amendment protection for expressive works such as films. However, being associated with a film that is the subject of a lawsuit is never pleasant for an advertiser that may have a tie-in relationship with the film. Before entering into a commercial tie-in deal with a film that is based on real-life subjects, it may be prudent for an advertiser to ask whether the filmmakers have obtained life story rights or other consents from the individuals being portrayed. While it may not be necessary for the filmmaker to have obtained such consents, and the typical indemnity clause in the tie-in agreement should provide legal protection for the advertiser against lawsuits by the individuals who did not provide such consents, an advertiser should weigh the potential PR risk in the event of defamation and right of publicity lawsuits, especially if the advertiser plans to use any clips or other assets from the film as part of a co-marketing campaign.

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