It’s a tricky question for independent filmmakers. Asking for forgiveness could be better than asking for permission. Here’s some guidance on which way to go.
So you work in the film industry and you come across a person’s real-life story that simply beckons your creative energies. Indeed, this person’s life is absolutely calling you. You can vividly envision this biographical story playing out scene by scene, and you’re determined to be the one to tell this compelling tale.
So what now? Do you need to buy the life rights to this individual’s story? Should that be your first step in the creative process?
As with many legal questions, the answer is not a concrete “yes” or “no.” The truth is, modern copyright law and the longstanding American right to free expression actually provide a lot of wiggle room for you to tell that story without acquiring the right to adapt someone’s life story into a movie.
There are two primary reasons for this: Facts and ideas aren’t protectable by copyright, and the First Amendment provides significant protections for freedom of expression.
So, if someone’s life is particularly interesting, the events and facts occurring in this life aren’t protectable by copyright. In other words, this interesting story subject does not legally own his or her own life story. That’s true even if there was a book or news article initially written about these events, as long as you’re not copying the writer’s expression within the book or news article.
The First Amendment also grants a lot of leeway to use people’s names and identities in a creative project. This right is similar to a journalist’s freedom to report news that involves someone’s life.
For example, the Illinois Right of Publicity Act includes exemptions for news reporting and using people’s likenesses and names in a creative work, as long as such a work “does not constitute in and of itself a commercial advertisement for a product, merchandise, goods, or services.” A similar exemption exists for advertising of creative projects (such as a trailer for a film). Right of publicity laws vary state by state but similar First Amendment protections exist in pretty much all instances.
But beware: There are potential potholes in this road once you decide to go down it without acquiring those life rights. Defamation, false light, and right of privacy are still concerns. If the information put forth in the creative work turns out to be false, then you are open to a potential defamation claim, although courts have acknowledged that some fictionalization may still be permissible in your work, as long as this stems naturally from the facts. See, e.g., Bindrim v. Mitchell, 92 Cal. App. 3d 61, 78 (Cal. Ct. App. 1978) (distinguishing “mere fictional embroidering” from an allegation that the subject was “acting as described”).
This, however, can be a fine line. Typically, you’d want to find multiple sources to support a particular fact that you’re using as the basis for the fictionalization, and you’d definitely want to be wary of fictionalizing anything on the basis of a “negative” fact. While you’d be protected from any fictionalizations that no reasonable viewer or reader could construe as an allegation of fact, the determination of what is “reasonable” is usually left to juries. Thus, there’s no broad guarantee that can be provided about fictionalization, and proving that you’re right could prove to be a lengthy and costly process.
For projects that are based on true stories, we encourage screenwriters to annotate their scripts by noting if something is a fact, fiction derived from fact, or is completely made up. (If we’re representing the producer of such projects in negotiations with the screenwriter, we include an obligation for the screenwriter to annotate the script.) All alleged facts should be double-sourced to the extent possible, and the sources need to be reputable. Information gleaned from court filings and court orders is the best resource, in that parties almost always have an obligation to state the truth (under penalties of perjury) in pleadings filed with the court.
The Life Rights Contract
Historically, bigger movie studios and established producers have chosen a safer path, and they’ve entered into a life rights contract with their story subject. There are a variety of reasons for this, but interestingly the core reason is not necessarily a legal one (although legally protecting the creative entity is also in play). The core reason is a creative one. Beyond just protecting the producers from legal action, those contracts can be used to improve the quality of the project as well.
No one knows his or her life better than the subject. For instance, say you’ve decided to do a mini-series on Barack Obama’s historic election as the first African American president. Obama has written exhaustively on his own life, and several biographers have written about his life, as well. Biographers must piece together events through research and reporting, while Obama himself might recall pieces of dialogue or other moments from his life more accurately than any biographer’s diligent research. It’s not that the biographer got information wrong. Rather, it’s that the writer was not in the room when, for example, Obama talked to his wife or daughters about his plans for higher office, or when he checked off on the campaign slogan, “Yes, We Can.” So Obama, as the subject, can provide you greater and more accurate details — and you certainly want accuracy and specificity to make your work as truthful and engaging as possible.
Often, the subject will be asked to consult on the project, which presumably would improve it, whether it’s in terms of providing juicy details that aren’t commonly known, or to provide some positive publicity for the project. On biopics about artists, this might also come with a streamlined method of being able to obtain licenses for the music or other works. These consulting services will often be exclusive to the producer/studio, so that the studio is assured that the subject will not offer the same services to someone else. Now, that doesn’t mean that someone else is prohibited from creating a competing project, but it does mean that the subject would be in breach of contract if that subject helped a competing producer.
In terms of protection for the producer, the subject would end up waiving a bevy of legal rights about being able to pursue the producer for any defamation, right of publicity, right of privacy, or other claims. That’s what gives the producers creative license to rework facts relating to the subject, even if it would displease the subject, and even if it would go beyond the limits of permissible fictionalization. These contracts also make it easier to deal with investors and insurers (but more on that below).
Independent Filmmakers Might Go a Different Way
Undoubtedly all of these obligations and waivers from the subject would cost the producer some money. So in today’s media environment, in which an endless assortment of smaller independent filmmakers are taking on bigger subjects, those less well-heeled producers might prefer to take the accompanying risks while still relying on the rather broad protections.
Also, we can’t emphasize enough that there are significant risks in asking for life rights but failing to get them. This can create big problems when trying to obtain errors and omissions (E&O) insurance, because insurance companies will ask whether you’ve tried but failed to clear any rights.
Let’s look at this as analogous to the health insurance world — it’s a sort of “preexisting condition.” The insurance company will simply carve it out, saying that the policy doesn’t cover any claims from the subject of the story. That would be more catastrophic for the production than being able to honestly say that no permissions have been denied, and proceeding to convince the insurance company’s underwriters that, as a matter of law, there was no obligation to obtain permissions in the first place.
In turn, the ability to obtain comprehensive E&O coverage can play the leading role in a reputable distributor’s decision of whether to pick up a project. If a project can’t be meaningfully distributed, then the producer and other investors in the film can’t make money from it. This is why many producers choose to avoid asking at all, rather than risk asking and not receiving assurances that they’ll obtain those rights.
Dead Men’s (and Women’s) Tales
Though dead people can’t be defamed in the legal sense, further complications can arise when the subject dies but still has living relatives — not so much because a producer needs permission from surviving relatives, but because those relatives may be particularly sensitive about the main subject’s legacy. For example, a couple of years ago Netflix released the film Dolemite Is My Name, and the surviving relatives of one of the subjects were offended by the producers’ choice not to consult them. Though “any press is good press,” I’m sure the producers of Dolemite would have much preferred for an article focusing on the merits of the film — not on how one of the characters’ heirs weren’t consulted.
Similarly, in situations in which the subject has died, the best resource may be someone who wrote about the subject previously, such as a journalist or biographer. Based on all of the principles we’ve already discussed, the writer’s permission isn’t necessary simply to write about the same topic or person. But the writer may be the best resource of those “insider facts,” and so the biographer or historian may be hired to consult on the project. For example, legally speaking, the producers of Hamilton didn’t need to hire Ron Chernow to consult in the creation of the musical, but the historian/biographer’s involvement presumably improved the quality of the production.
Hiring the writer as a consultant also has the added benefit of avoiding any potential copyright infringement claims from the author. This may prove important for facts that were fictionalized by the author in the original work. See, e.g., Burgess v. Chase-Riboud, 765 F. Supp 233 (E.D. Pa 1991) (finding that a playwright’s copying of imagined scenes of the affair between Thomas Jefferson and Sally Hemmings infringed on original author’s copyrights).
Like many aspects of entertainment law, various factors must be weighed before a creative entity moves forward with a promising project. Whether to seek life rights for a subject in the story is no black-and-white matter, and it isn’t an entirely law-based issue. We can assist you when looking through all the grey areas of this complicated question.