Sensitivity vs. Sensationalism: Victim Negligence & Publicity Rights in the Era of Tending True Crime Series
Netflix’s Monsters: The Lyle and Erik Menendez Story has become one of the most-watched Netflix shows this fall, quickly captivating audiences with its riveting acting and suspenseful narrative. [1]
The show amassed about 500 million views from Sept. 23 to Oct. 20. [2] The Lyle and Erik Menendez Story along with The Jeffrey Dahmer Story (both part of the Monsters series) highlight the popularity of true crime narratives today. However, the surge in TV shows raises ethical concerns about portraying real-life events, especially regarding the privacy of victims and their families. Critics argue that such dramatizations can inflict emotional harm on those directly affected, as these shows often prioritize sensationalism over sensitivity. As true crime continues to dominate streaming platforms, it is crucial to consider the balance between storytelling and the respectful treatment of those whose lives have been irrevocably altered by these tragedies. States should consider adopting an approach similar to New Jersey’s common law right of publicity, as it has clearer protection for deceased individuals and broader interpretation of commercial exploitation.
The right of publicity emerged as a distinct intellectual property concept in the 1950s, decades after the recognition of privacy rights. The US Court of Appeals for the Second Circuit first acknowledged this right by addressing the inherent value of prominent persons’ identities on the basis of New York law, which protects commercial use of one’s image. [3] The Supreme Court later affirmed the right of publicity in Zacchini v. Scripps-Howard Broadcasting Co., [4] stating that exploiting someone's identity for commercial gain without compensation, especially when that identity has monetary value, serves no social purpose. However, the Court left the implementation and protection of this right to individual states. [5]
Today, the right of publicity is defined in the Restatement 3d of Unfair Competition as the, “appropriation of the Commercial Value of a Person’s Identity.” [6] It protects against unauthorized use of, “a person’s name, likeness, or other indicia of identity for purposes of trade.” [7] Unlike the personal right of privacy, the right of publicity is a property right that can be freely assigned or transferred. [8]
Currently, thirteen states have adopted the right of publicity by statute, with many others recognizing it through common law. However, it’s typically considered a tort right, only providing relief for the “commercial exploitation of a person’s identity.” [9] The evolution of this right reflects the need to address challenges posed by technological advancements, particularly in the context of true crime portrayals. As the genre’s popularity has skyrocketed and its variety expanded, there’s a growing argument for a universally recognized right of publicity to protect victims’ rights in these depictions. [10]
The current set of laws defining the right of publicity falls short in addressing the unique challenges posed by true crime TV shows and victims of the subjects. The Jeffrey Dahmer Story, the first show in the Monster series, has garnered backlash from many family members of Dahmer’s victims. While star actor Evan Peters received a Golden Globe, commemorating the success of the show, its portrayal of real-life victims and their families has reignited trauma for those affected by Dahmer’s crimes. [11] Tatiana Banks, daughter of one of Dahmer’s victims, expressed that the series “reopened a chapter of [her] life that was closed.” [12] Rita Isbell, whose 19-year-old brother was killed by Dahmer, said, “it’s a shame that people can take our tragedy and make money.” [13] These two statements are not isolated; many other family members of Dahmer’s victims reported being blindsided by the series, having never been contacted or consulted during its production. [14] The victims’ attorney Thomas M. Jacobson expressed his concerns about victim negligence. From his understanding, regretting to engage the families of victims in the creation of these shows reflects a lack of compassion and awareness for those who have been directly impacted by the crimes. [15]
This situation underscores a problem in the true crime genre: the appropriation of victims’ identities and stories without proper consideration for their well-being or consent. The true crime genre spans a wide spectrum of appropriation, from dramatic reenactments to documentary-style investigations. [16] These practices risk retraumatizing victims and their families and commodify tragedy for commercial gain. It challenges the balance between public entertainment and individual rights of publicity. [17]
While proponents of true crime series might argue for free speech and creative freedom in dramatizing public-interest stories, the emotional toll on victims and their families should take precedence. The right to tell these stories should not supersede the right of victims to privacy and dignity. Moreover, the lack of consultation with affected parties challenges the accuracy and ethical integrity of these portrayals.The implications of prioritizing profit over empathy are particularly concerning in the true crime genre. Sensationalism often employed in these shows can overshadow the real human suffering behind these stories.
The victims and their families in cases like the Dahmer series face significant challenges in pursuing legal action under current publicity rights laws. These laws, primarily designed to protect the commercial value of a person’s identity, may not adequately address the emotional harm and privacy concerns of crime victims and their families.
One major obstacle is the state-by-state nature of publicity rights, with only thirteen states having adopted specific statutes while others rely on common law, leading to inconsistent protections. This approach makes it difficult for victims to navigate their rights, especially when dealing with productions that may cross state lines or be distributed nationally. Additionally, the notion of prominent persons or individuals with monetary value in publicity rights law inadvertently excludes crime victims. These individuals, forced into the public eye unwillingly, do not meet traditional definitions of celebrity or public figure status, limiting their legal protections. This gap in the law fails to account for the unique position of crime victims whose stories are exploited for entertainment without their consent.
To address the shortcomings in current publicity rights laws, states should consider adopting an approach similar to New Jersey’s common law right of publicity. Unlike many states where publicity rights expire upon death, New Jersey’s common law right of publicity allows for the control and protection of a person’s name, likeness, and identity even after they have passed away. [18] This postmortem right is particularly significant as it enables the estates or beneficiaries of deceased individuals, especially public figures or celebrities, to continue managing the commercial use of their loved one’s identity. [19]
The state’s expansive interpretation of this right covers various commercial exploitations, including theatrical performances and television series that primarily profit from the fame or notoriety of real-life individuals. This broad scope is important in today’s media landscape, where true crime documentaries and dramatizations of deceased individuals’ lives have become lucrative. By allowing families and beneficiaries to enforce the deceased’s rights of publicity, New Jersey's approach provides a mechanism for protecting the dignity and legacy of individuals long after their passing. This is a critical gap that exists in many other state laws and constitutional law.
To ensure the feasibility and effectiveness of implementing a nationwide policy similar to New Jersey’s, these protections would apply primarily to future productions rather than retroactively. This prospective application would allow content creators and production companies to adapt their practices gradually, reducing potential industry pushback. It would also provide a transition period for states to align their laws with the new national standard, avoiding constitutional challenges related to ex post facto laws or impairment of existing contracts.
However, to address concerns about existing true crime content, the policy could include provisions for mandatory review and potential modification of existing series if they continue to be distributed or reproduced. Additionally, a fund could be created, supported by revenue from existing true crime content, to compensate victims’ families affected by past productions. This approach would balance the need for protecting victims’ rights going forward while acknowledging the complexities of the current media landscape and existing content.
To conclude, the rise of true crime series and documentaries has exposed significant gaps in current publicity rights laws, particularly in their ability to protect victims and their families from emotional harm and unauthorized exploitation. The case of the Monsters series and other true crime shows highlight the need for a more rigid and uniform approach to publicity rights across states. New Jersey’s model, with its clearer protection for deceased individuals and broader interpretation of commercial exploitation, offers a promising template for reform. By adopting similar measures, states can better balance the public’s interest in true crime narratives with dignity and privacy. As the genre continues to evolve and gain popularity, it is important that legal frameworks adapt to ensure respect for victims’ rights. There is no doubt that the true crime phenomenon has become addictive, captivating audiences with its blend of suspense, drama, and real-life tragedy. However, this obsession raises questions about the commodification of human suffering and retraumatization of victims.
At what cost does our fascination with TV shows like Monsters come?
Edited by Marshia Ahsan
Endnotes
[1] Roeloffs, Mary Whitfill. “Prosecutors Could Back Resentencing Menendez Brothers Today-as Controversial ‘monsters’ Stays High on Netflix Charts.” Forbes, October 25, 2024. https://www.forbes.com/sites/maryroeloffs/2024/10/24/prosecutors-could-back-resentencing-menendez-brothers-today-as-controversial-monsters-stays-high-on-netflix-charts/.
[2] Ibid.
[3] Williams, Ashton. “Shockingly Evil: The Cruel Invasive Appropriation and Exploitation of Victims’ Rights of Publicity in the True Crime Genre .” Journal of Intellectual Property Law, 6, 27, no. 2 (June 2020), page 309.
[4] 433 U.S. 562
[5] Williams, Ashton. “Shockingly Evil: The Cruel Invasive Appropriation and Exploitation of Victims’ Rights of Publicity in the True Crime Genre .” Journal of Intellectual Property Law, 6, 27, no. 2 (June 2020), page 310.
[6] 44 Restatement (Third) Of Unfair Competition § 46 (Am. Law. Inst. 1995).
[7] Williams, Ashton. “Shockingly Evil: The Cruel Invasive Appropriation and Exploitation of Victims’ Rights of Publicity in the True Crime Genre .” Journal of Intellectual Property Law, 6, 27, no. 2 (June 2020), page 309.
[8] Ibid.
[9] Ibid.
[10] Williams, Ashton. “Shockingly Evil: The Cruel Invasive Appropriation and Exploitation of Victims’ Rights of Publicity in the True Crime Genre .” Journal of Intellectual Property Law, 6, 27, no. 2 (June 2020), page 316.
[11] “Evan Peters.” Golden Globes, October 25, 2023. https://goldenglobes.com/person/evan-peters/.
[12] Porterfield, Carlie. “Dahmer Victim’s Mother Blasts Netflix Series After Actor Wins Golden Globe—Latest Family Member To Speak Out.” Forbes, January 12, 2023. https://www.forbes.com/sites/carlieporterfield/2023/01/12/dahmer-victims-mother-blasts-netflix-series-after-actor-wins-golden-globe-latest-family-member-to-speak-out/.
[13] Ibid.
[14] Ibid.
[15] Foran, Chris. “The Lawyer for Families of Jeffrey Dahmer’s Victims Says Emmy Nominations ‘glorify’ Milwaukee Serial Killer.” Milwaukee Journal Sentinel, July 13, 2023. https://www.jsonline.com/story/entertainment/television-radio/2023/07/13/lawyer-for-jeffrey-dahmers-victims-families-emmy-nominations-glorify-milwaukee-serial-killer/70409261007/.
[16] Williams, Ashton. “Shockingly Evil: The Cruel Invasive Appropriation and Exploitation of Victims’ Rights of Publicity in the True Crime Genre .” Journal of Intellectual Property Law, 6, 27, no. 2 (June 2020), page 308.
[17] Laura Callihan, Infringement, She Wrote: The Intellectual Property Rights of Victims in True Crime Craze, 6 U. Cin. Intell. Prop. & Comput. L.J. (2022), (page 1-2).
[18] Williams, Ashton. “Shockingly Evil: The Cruel Invasive Appropriation and Exploitation of Victims’ Rights of Publicity in the True Crime Genre .” Journal of Intellectual Property Law, 6, 27, no. 2 (June 2020), page 316.
[19] McFarland v. Miller, 14 F.3d 912, 918 (3d Cir. 1994).