Filmmakers Embrace "Creative License" in Films Based on Fact

A British court in 1933 found in favor of the plainfiff who claimed defamation from the U.S. film Rasputin and the Empress, which was released the year before. One of the justices wrote that, if the filmmakers had made it clear that the film was largely ficitious through some kind of disclaimer, then he might have ruled differently. Taking the hint, U.S. films began to carry disclaimers that generally stated that the character and events in the film were fictitious and any resemblance between living persons and actual events was unintentional or coincidental or accidental. A general counsel for a major studio told me that the disclaimer was really meant for fictitious films and for situations where a bald, fat, and boorish man that one of the screenwriter knows wants to sue, claiming that the bald, fact, and boorish boss in the movie is based on him. However, the disclaimer was the result of an historical film and was used for 20 or so years, even for films about historical characters, like They Died with Their Boots On (1940) about General Custer, which did indeed fictionalize most of Custer's story. A disclaimer's main purpose is to establish lack of intent to defame. But, as more and more films have actively promoted that they are "based on a true story," such a traditional disclaimer has been in conflict with that promotion. Consequently, the disclaimers have been modified to claim that, although the film is based on fact, some of the characters and events are ficitious and any resemblances between living persons and events is unintentional or accidential or coincidental.

However, an historical film that I saw, ironically and intentionally, on the 4th of July, drastically modified the disclaimer. The Conspirator was made eight years ago, but it had a limited U.S. release and just started to appear on cable. It is based on a very exciting true story--the trial and executon of Mary Surratt for complicity in the assassination of President Lincoln on April 14, 1865. (I remember my Dad pointing out the building, which is still standing, at 541 H Street in Washington, D.C. that was Surratt's bording house where John WIlkes Booth and the other assassins met to hatch their plan.) There is debate to this day as to whether Mrs. Surratt simply owned the boarding house or was one of the conspirators.

The disclaimer for The Conspirator reads, "The story is based on actual events. Care has been taken to ensure historical accuracy. Names, places, and events may have been changed for creative license purpose only."

And so, the filmmakers, which include the director Robert Redford, are no longer admitting occasional fictionalization but embrace the concept of "dramatic license," which is not a legal term but rather a colloquial expression meaning that the work takes liberties with historical events. As used in The Conspirator, it basically means that they changed things because they had to to make it more dramatic.

For The Conspirator, the filmmakers did have to make things up. It is told from the perspective of Surratt's attorney, Frederick Aiken. Little is known of him: he was a journalist as well as an attorney; he fought on the Union side, although he offered his journalistic services to the Confederate president; he and his equally young and inexperienced law partner jointly defended Surratt; and, after losing the trial, he and his partner dissolved their law firm and he returned to journalism. The basic documentation for the facts of the film are the trial transcript and Aiken's relataively brief obituary in The Washington Post in 1878 for which he was an editor. He never wrote a biography or gave interviews. So when the film tells the story from his viewpoint and shows him struggling with his feelings and learning to know and even love Mrs. Surratt, it is all made up from scratch out of the filmmakers' imaginations.

The problem is, as I have written and said before, people watching a movie based on fact don't know what is made up.

The Conspirator reminded me of a play and tv movie that was based on events that happened just after the trial of Mary Surratt. The Andersonville Trial tells the story of the trial of Henry Wirz, the commandant of the notorious Andersonville prison camp for Union soldiers. As was the case with the trial of Mary Surratt, the verdict had been preordained by the victors of the war. But in the play, the prosecutor, Lt. Col. Norton P. Chipman, struggles with the fact that Wirz was only following orders. The judges are all Union soldiers and are not anxious to have the trial debate whether or not a soldier should disobey orders under certain circumstances. Chipman persists, at the risk of his career, and gets Wirz to admit on the stand that he knew he should have disobey but didn't have the courage to do so.

I admired the play and wanted to play Chipman, but never did. The 1970 tv adaptation won the 1971 Emmy award for outstanding single program and for Saul Levitt''s script based on his 1959 play. In writing my book, I included this tv film based on fact and found, to my surpriase, that the historical Chipman had never pursued these argument in the trial. It was all made up by Levitt, who was drawing on concerns of the late 1950s about Nazi officers duing World War II who executed the holocaust that killed millions because the officers were only following orders. Levitt was also writing about McCarthyism's Blacklist in which individuals did nothing while false statements destroyed the careers of their colleagues. He used 19th century characters to debate mid-twentieth cenury issues. I believed that what I saw in The Andersonville Trial happened because it was based on a true story. I know from experience that others believe this way too when they see an historical film.

Marketing is the driver, and "based on a true story" sells better than "suggested by a true story." 

This ties in with another blog I wrote today about erosions in trust and the truth.

Copyright 2018 by John T. Aquino