How to get away with murder (documentaries)

The true crime genre has gained immense popularity in recent years, with documentaries, podcasts, and books chronicling the lives and crimes of some of the most notorious criminals in history. Between January 2018 and March 2021, the number of documentaries that were available for streaming increased by 63%, with true crime making up the largest documentary subgenre.[1] While true crime can provide an in-depth look at the criminal justice system, there are myriad legal issues that producers should assess before entering into this life of true crime.

Potential copycat crimes

The entertainment industry has an indisputable influence on society. Unfortunately, this also extends into the true crime. Criminal offenders have often directly admitted to being inspired by previous crimes; even when not acknowledged directly by the criminals, their crimes often betray an undeniable similarity with ones portrayed on the screen. These types of crimes are often referred to as “copycat crimes”. Evidence indicates that approximately 25% of offenders report that media or popular culture played some role in their crimes. One example of this phenomenon is the murder of a Concordia University student by a convicted Canadian serial killer. During the killer’s trial, the Crown attorney noticed that the killer’s actions drew on elements from multiple movies about serial killers, such as the 1990s erotic thriller Basic Instinct. Sparing the graphic details, there were multiple similarities outlined between the murder weapons, violent actions, location of murder and alias used.

Copycat crime lawsuits

The dissemination of true crime can expose entertainment companies to lawsuits related to copycat crimes, in an attempt to hold producers and distributors liable for violent true crime recounts. The claims can be reduced to tort law versus constitutional law. Plaintiffs generally allege that the entertainment company is negligent for producing or distributing content that the creators knew or should have known would cause the viewer to imitate the violent content; in response, defendant companies typically put forward a freedom of expression defence.

In Byers v Edmondson,[2] two teenagers shot and killed Ms. Byers, a convenience store clerk. In addition to a claim against the teenagers, the estate of Ms. Byers filed supplemental claims against the entertainment company and the producer. The estate claimed that the producer’s film, Natural Born Killers, inspired her attackers and that the producer should have known that such crimes would result from the distribution of the film.

Although this claim was ultimately unsuccessful, it was the first copycat crime claim in the United States that the courts did not automatically dismiss. Since then, more lawsuits have been brought forward, potentially indicating that courts no longer allow entertainment companies to use their traditional freedom of expression shield to protect themselves from liability, even in the United States where this freedom is fiercely protected.

Speech that is aimed at inciting violence is outside the scope of freedom of expression protection is well established in Canada and the United States. Establishing that the production company intended to incite violence and that the specific content was a cause, however, has shown to be problematic in practice. This challenge is mainly due to the lack of convincing research available to establish a causal link between violent content and violence in society on a balance of probabilities. However as more research is conducted, and more true crime content is created, it is possible that more reliable correlations will be brought forth and perhaps be successful.

Crime doesn’t pay (criminals)

Not only can true crime inspire various crimes, the glorification of individuals who have been convicted of crimes has been shown to send the message that committing violence is one route to fame and notoriety. Many offenders admit that they committed a crime to gain fame and many have gone as far as reaching out to media organizations to achieve such notoriety. In response, several provinces and states have enacted laws of which entertainment companies should be mindful when they seek to purchase the rights to a story involving a serious crime.

In Canada, laws exist in Alberta, Saskatchewan, Manitoba, Ontario, British Columbia and Nova Scotia that generally operates by redirecting any payments that the criminal may receive under a “contract for recounting crime” to the provincial government (and then, typically, in turn to the family of the victims). Similar laws exist in the United States; they are called “Son of Sam” laws, named after a 1970s New York City serial killer who was nicknamed “Son of Sam”.  In most cases in Canada, these laws were enacted in response to the possibility of a criminal profiting from their crime.

It is important to note that these laws do not prevent others from profiting from telling the story of crimes. The laws simply prevent a company from paying a criminal to recount the story of their crime. However, as the true crime genre becomes more popular and profitable, there may be increased pressure for entertainment companies to be more transparent about their profits and to provide fair compensation to the victims’ families.

Final thoughts

The true crime genre has experienced significant growth in recent years, with various entertainment mediums offering in-depth insights into the lives and crimes of some of the world's most notorious criminals. However, this growth also raises concerns regarding the potential glorification of criminals and the ethics of profiting from heinous acts. While true crime’s economic potential is evident, entertainment companies must consider the implications before producing true crime content. With careful consideration and responsible decision-making, true crime can be a valuable tool for educating the public about the criminal justice system while avoiding the risk of glorifying criminals.