By Jill L. Smith
It is common knowledge that many films are based on a real person’s life story. However, it comes as a surprise to many to find out that it is not always necessary to acquire any underlying rights in order to produce a movie based on someone’s life story…
As a general concept, life story rights are acquired in order to avoid violating the rights of someone else. In depicting real people in a film, there are three areas of potential violation: defamation, infringement of the right of privacy and infringement of the right of publicity. In addition, with respect to written material (e.g., biographies), consideration also needs to be given in order to avoid copyright infringement.
Each of these items should be separately considered in determining whether any underlying rights must be acquired. If the result of the evaluation is that there is a potential for infringement in even one area, then rights should be obtained. While the analysis to be made will be fact-specific (Is the subject alive or deceased? How much is known about the subject?) below is a general overview of the requisite analysis.
We will first consider defamation. Defamation only occurs if there is an untruthful portrayal of a person that damages the subject. The right not to be defamed dies with the person. However, even if the primary subject of the intended film is deceased, unless the story revolves around that person’s survival on a desert island where there were no other inhabitants, the stories of other people involved with the main subject will also be told and those people may still be alive. While the plan may be to stick to the truth it is often the case that liberties will be taken in bringing true life stories to the screen in order to make a more compelling movie. The determination of whether those creative liberties rise to the level of defamation will be based on an analysis of the specific facts and intentions.
The next concern is the right of privacy, sometimes referred to as the right to be left alone. This is a complex area of law generally understood to include four separate (but at times overlapping) torts: intrusion of a person’s solitude or private affairs; appropriation of a person’s name or likeness; public disclosure of embarrassing private facts; and publicity placing a person in a false light. The right to privacy is also generally considered a personal right and, thus, like defamation, does not survive a person’s death. Where the subject is still living the analysis is complex and can include balancing the person’s right of privacy against First Amendment rights. Again, the particular circumstances need to be evaluated to determine whether the disclosures about the subject intended to be made in the film violate the person’s right of privacy. As a generalization, if the information to be disclosed or portrayed is widely known to the public and if there are many resources for the information, the likelihood of an invasion of privacy claim is diminished. There is also more latitude if the subject is a public figure. The determination of whether those creative liberties rise to the level of defamation will be based on an analysis of the specific facts and intentions.
The right of publicity, however, does survive a person’s death. This right applies to both public and private figures. A violation of the right occurs when use of a person’s name and likeness for commercial purposes is made without consent. While most of us would consider that films are commercial undertakings, the use of a person’s name or likeness in a film is actually not considered commercial use for purposes of the right of publicity. However, the ability to use the same name or likeness on merchandising or other ancillary materials will be impacted.
Where there is written material the additional issue of copyright infringement must be evaluated. Assuming that the written material is not in the public domain, the analysis will focus on what the material is and how it is to be used. For instance, if there are several books concerning the subject, the likelihood of needing the rights to any one of those books to tell the story is diminished. Similarly, if the material is to be used solely for informational or research purposes, then there is likely no need to acquire the rights. On the other hand, if there is only one book concerning the person and/or if the structure of the written material is intended to be followed and/or some text from the material may be used as narration or as script dialogue, then clearly the rights would need to be acquired. For the various in-between scenarios, an analysis of the facts is required to determine if the rights must be obtained. Something to keep in mind is that the acquisition of the rights in the book does not negate the need for analysis regarding the subject’s life story rights, as it is rarely the case that an author has obtained film rights from the subject even if a biography is authorized.
A producer may still be motivated to acquire rights for the life story or book, even when not legally required. For instance, the publicity value in the ability to use the title of a bestseller or the name of a popular author could well justify getting rights even when not required. There may also be value in crediting an individual as a producer, executive producer or consultant of a movie based on his own life story. Also, by obtaining rights on an exclusive basis, particularly if accompanied by consulting services, the producer may gain exclusive access to information, anecdotes and/or memorabilia that might not be otherwise generally known. While that may not prevent someone else from doing a movie about the same subject if the rights are not legally required, the mere fact that a producer has obtained certain rights can, in certain instances, dissuade others from pursuing a similar project.
This article provides a framework within which to make a preliminary analysis. However, as in most legal analysis situations, the determination of how to proceed (in this instance, whether or not to obtain biographical rights) ultimately depends on the specific facts and circumstances involved.
Jill prides herself on providing attentive service to her clients in all facets of entertainment transactions relating to the development, production, financing, distribution and exploitation of motion pictures and television series.
This article originally appeared in leading legal publication The Los Angeles and San Francisco Daily Journal.