Author: Gracie Edelen, Senior Editor
Background
Throughout history, film and other forms of creative storytelling have served as impactful and widely accessible ways for audiences to learn about historical figures and events. The First Amendment gives filmmakers significant creative freedom to portray historical events and the lives of living or deceased individuals.[i] While this has benefited the entertainment industry, it has also brought criticism for inaccuracies and dramatization of historical events and figures. The repercussions of defamation and right-of-publicity lawsuits offer some protection against significantly misleading or inaccurate portrayals, reinforcing the importance of this form of entertainment.[ii] While these legal protections provide balance between creative freedom and accurate portrayals, a separate question arises as to how private legal instruments, such as settlement agreements, may restrict or otherwise shape the stories that filmmakers are able to tell.
This issue is a central focus of the 2026 biopic, Michael. The film depicts the life of the late pop star Michael Jackson and his rise to international fame as the “King of Pop.” [iii] After the film’s release, controversy emerged as fans quickly identified discrepancies in its portrayal of certain events.[iv] These discrepancies raised concerns extending beyond ordinary creative choices or dramatization. Instead, they reignited attention to private settlement agreements involving Jackson and the extent to which those agreements continue to bind his estate.[v] Michael’s production shows how a private legal agreement can have lasting consequences for the public portrayal of historical events, raising questions about the tension between First Amendment freedom of expression, the enforcement of private contractual obligations, and the public’s interest in complete historical narratives.
Filmmaker Protections and Restrictions
The First Amendment provides the entertainment industry with broad protections to creatively portray the lives and stories of others through film.[vi] Courts have historically held that motion pictures are entitled to First Amendment protection alongside other forms of media, including books, newspapers, and magazines.[vii] They have also rejected arguments that films should receive less protection because their production, distribution, and exhibition constitute a large-scale business for private profit, and because of their potentially negative influence on audiences, particularly younger viewers.[viii] Other courts have similarly recognized film as a form of expression, which has been constitutionally protected since the First Amendment’s adoption.[ix]
Despite strong protections for filmmakers, no freedom is absolute. In Davis v. Costa-Gavras, the court allowed a libel claim brought by a military captain who alleged that he was falsely portrayed as having participated in a murder, implying that though the filmmakers had First Amendment Protections, they can still face liability when making a false and defamatory factual accusation about an identifiable real person.[x] Another limitation is seen in Estate of Presley v. Russen, where the court found that an Elvis Presley impersonation show unlawfully exploited Presley’s name, likeness, and persona.[xi] Although the case did not involve a film, it remains significant because it recognizes an individual’s right of publicity as a First Amendment limitation, even after death.[xii]
Although legal factors like defamation and right of publicity laws may limit First Amendment protections in certain circumstances, courts generally afford filmmakers broad freedom of expression. This post, however, focuses on a different type of constraint: private contractual restrictions.
Unlike generally applicable legal limitations, these restrictions arise from agreements that are voluntarily entered into by private parties, are not subject to judicial enforcement, and may have a longer-lasting impact on what filmmakers can ultimately portray.[xiii] This tension is particularly prominent in the biopic Michael, which offers a valuable case study for examining how private contractual restrictions can shape the portrayal of historical figures in film. Specifically, the film raises the question of whether complying with such private restrictions may increase the risk of falsehood in historical storytelling, in contrast to the broader expressive freedom ordinarily afforded to filmmakers under the First Amendment.
Michael, The Biopic
The 2026 Michael Jackson biopic, Michael, begins with Jackson’s childhood and the start of the Jackson 5 alongside his brothers.[xiv] The film follows Jackson’s rise from the Jackson 5 to his successful solo career, including the release of some of his most successful albums, including Off the Wall and Thriller, and ends with the start of his Bad album tour in 1985.[xv] After the movie’s release, many wondered why the film seemed to stop so abruptly, and excluded major events in Jackson’s life that followed, including his purchase and creation of his $19.7 million estate, which he named Neverland.[xvi] What fans did not know, however, was that Jackson’s later life, including those surrounding Neverland Ranch, had not only been planned for inclusion in the film but had already been filmed.[xvii] However, the original ending addressed the sexual abuse allegations against Jackson, his arrest, and the search of Neverland Ranch.[xviii] Because of these allegations, in 1994, a $23 million civil settlement with the accuser’s family was reached, but no criminal charges were pursued or guilt admitted.[xix] Unbeknownst to director Antonie Fuqua, this private settlement also included an agreement that forbade any future depiction of the accusations or the settlement.[xx]
This widely popular biopic raises an important question: if the First Amendment gives filmmakers broad protection to tell the stories of historical figures, how can a private contractual agreement still impose such significant restrictions on what filmmakers can portray? The clear answer is that the First Amendment, along with all the other amendments, was put in place to protect individuals from government infringement of rights, not from private actors or organizations.[xxi] While defamation and right-of-publicity limitations look like conflicts between two private parties, they are based on state law and enforced through the courts, unlike the private contractual restrictions at issue in this case.[xxii] The First Amendment cannot prevent the enforcement of a private contract.[xxiii]
This issue becomes particularly significant in cases like Jackson’s, where, even after his death, contractual obligations may still limit a complete portrayal of his life and continue to bind his estate.[xxiv] Under traditional principles of contract law, death does not necessarily terminate contractual obligations.[xxv] This principle raises the question of whether filmmakers should be afforded greater freedom to portray historically significant events despite restrictions created by decades-old private settlement agreements. When such agreements limit the ability to present a complete historical narrative, the public’s interest in preserving and understanding history may weigh against continued enforcement, particularly where the restricted material would otherwise constitute protected expression under the First Amendment.[xxvi]
Conclusion
First Amendment protections generally provide filmmakers with broad creative freedom to depict real individuals and historical events.[xxvii] Although this freedom is subject to limitations, including defamation and right-of-publicity laws, filmmakers still retain significant discretion in how they portray these stories.[xxviii] However, Michael demonstrates how private contracts can impose additional and potentially more extensive limitations on filmmakers.[xxix] Although private contractual agreements generally do not implicate the First Amendment because they do not involve government restrictions on speech, and contractual obligations may survive a party’s death, this framework becomes more complicated when applied to historically significant public figures.[xxx] Broader exceptions may be appropriate when decades-old private agreements restrict portrayals of important historical events, especially when the public interest in preserving and understanding history may outweigh the interests served by continued enforcement.
[i] U.S. Const. amend. I.
[ii] Davis+Gilbert LLP, Right of Publicity and the Rise of True Crime, Davis+Gilbert LLP (July 10, 2019), https://www.dglaw.com/right-of-publicity-and-the-rise-of-true-crime/.
[iii] Michael (2026) – Plot, Imdb, https://www.imdb.com/title/tt11378946/plotsummary/.
[iv] Mike Duquette, What ‘Michael’ Gets Wrong: 6 Inaccuracies in the New Michael Jackson Biopic, Billboard (Apr. 23, 2026), https://www.billboard.com/lists/michael-jackson-movie-biopic-inaccuracies-wrong/.
[v] Id.
[vi] U.S. Const. amend. I.
[vii] Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952).
[viii] Id. at 501.
[ix] U.S. Const. amend. I.
[x] Davis v. Costa-Gavras, 619 F. Supp. 1372 (S.D.N.Y. 1985).
[xi] Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981).
[xii] Id.
[xiii] 18 U.S.C. § 3626(g)(6).
[xiv] Michael – Synopsis, Universal Pictures, https://www.universalpictures.co.uk/movies/michael/synopsis/.
[xv] Id.
[xvi] Charlie Lankston, Michael Jackson’s $5 Billion Estate: Inside King of Pop’s Posthumous Fortune—and What Happened to His Infamous Neverland Ranch, Realtor.Com (May 14, 2026), https://www.realtor.com/news/celebrity-real-estate/michael-jackson-estate-children-neverland-ranch-california/.
[xvii] Andrew Pridgen, A Decades-Old Lawsuit Led to Glaring Omission from Michael Jackson Biopic, SFGATE (May 13, 2026), https://www.sfgate.com/centralcoast/article/michael-jackson-movie-lawsuit-22241229.php.
[xviii] Id.
[xix] Barbara Maranzani, Michael Jackson’s Legal Trouble: A Timeline, A&E (July 16, 2026), https://www.aetv.com/articles/michael-jackson-legal-trouble-timeline.
[xx] Pridgen, supra note xvi.
[xxi] What Is a Violation of My First Amendment Rights?, The Chandra Law Firm LLC, https://www.chandralaw.com/faqs/what-is-a-violation-of-my-first-amendment-rights.
[xxii] Right of Publicity, Int’l Trademark Ass’n, https://www.inta.org/topics/right-of-publicity/.
[xxiii] Geoffrey R. Stone & Eugene Volokh, Freedom of Speech and of the Press, NAT’L CONST. CTR., https://constitutioncenter.org/the-constitution/amendments/amendment-i/interpretations/266.
[xxiv] Pridgen, supra note xvi.
[xxv] Restatement (Second) of Contracts § 262 (Am. L. Inst. 1981).
[xxvi] U.S. Const. amend. I.
[xxvii] Id.
[xxviii] Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952).
[xxix] Pridgen, supra note xvi.
[xxx] Stone, supra note xxii.