## Facts

- Robert Kelly, a U.S. Navy officer who served with a PT boat squadron in the Philippines during World War II, cooperated with journalist William L. White in 1942 interviews that became a book about the squadron’s operations.
- Loew’s Inc. acquired rights to the book and produced the motion picture *They Were Expendable*, which included a character named “Rusty Ryan.”
- Kelly alleged “Rusty Ryan” was a thinly disguised portrayal of him and that the depiction held him up to ridicule by portraying him as headstrong, resistant to orders, self-seeking, and overly amorous toward an Army nurse.
- Kelly claimed injury to professional reputation and resulting embarrassment and mental distress.
- Before production, Kelly signed a written consent/release authorizing use of his story and permitting dramatization and fictionalization for a motion picture.
- Kelly sued Loew’s Inc. for libel on three counts: alleged publication of the script, and exhibition of the film at two Boston theaters (Orpheum and State).
- Loew’s denied that the script was published to third parties and argued it was not responsible for exhibitions at the Boston theaters, which it did not own.
- The parties waived a jury; the case was tried to the court.

## Issues

1. Whether there was sufficient “publication” of the motion picture script to support a libel claim.
2. Whether Loew’s Inc. could be held responsible for allegedly libelous exhibition at Boston theaters it did not own.
3. Whether viewers reasonably identified “Rusty Ryan” as Robert Kelly.
4. Whether the script and film, viewed as a whole, conveyed a defamatory meaning that would lower Kelly’s reputation among respectable members of the public or within his profession.
5. Whether Kelly’s written consent/release barred or defeated the libel claims.

## Decision

- Judgment was entered for Loew’s Inc. on all counts.
- The court found inadequate proof that the script was published in a manner constituting actionable publication for libel.
- The court found the evidence insufficient that audiences in Boston identified “Rusty Ryan” as Kelly.
- Considering the work as a whole, the court concluded the portrayal did not hold Kelly up to ridicule or contempt in the eyes of respectable viewers or naval officers.
- Kelly’s consent/release, permitting dramatization and fictionalization, weighed strongly against liability for the complained-of character traits and scenes.

## Legal Principles

- A libel claim requires proof of publication of the allegedly defamatory matter to a third person.
- A plaintiff must prove that the challenged portrayal was reasonably understood by at least some viewers as referring to the plaintiff (identification).
- Defamatory meaning is assessed by the overall reasonable impression of the work, not by isolated scenes; the question is whether it would lower reputation among respectable members of the public or the relevant professional community.
- Consent by written release to a dramatized depiction of one’s life events and character is a substantial defense and may preclude recovery for foreseeable fictionalization within the scope of the consent.

## Conclusion

The court rejected the libel action arising from a dramatized film character allegedly based on a naval officer, holding that the plaintiff failed to prove actionable publication and identification and that, in context, the portrayal was not defamatory to a respectable audience, especially given the plaintiff’s written consent to dramatization.


Kelly v. Loew's Inc., 76 F. Supp. 473 (D. Mass. 1948)