Life Story Rights: Do You Need 'Em?
by John Aquino on 05/16/12
I am often asked about life rights, usually in connection with writing or filming a biography of an individual.
From a copyright perspective, you can only obtain copyright protection for a work of authorship. You cannot copyright an idea or a historical event. For example, say a historian, after years of going through old newspaper files, determines that there was a Civil War battle that no one had previously recorded. He publishes his book to great acclaim. He hires an agent to see if a producer wants to buy the rights to his book, but then he hears that Steven Spielberg has announced that he will film a story about the battle. The man e-mails Spielberg, “You SOB, you’re trying to steal my battle.”
The historian can, of course, sells the film rights to his book. But the battle is now part of history. If she could talk, history would say, “Thank you, sir, for bringing the battle to light again. But now that we’ve thanked you, get out of the way and get lost. It’s not your battle. It’s my battle.”
Similarly, to the extent that a person was in the public eye, it would be difficult to say he or she “owns” his or her life story. It too is part of history. Even if the actress Elizabeth Taylor had written her autobiography, her copyright for that book would not have prevented someone else from publishing an unauthorized biography. The First Amendment gives an unauthorized biographer that right. If Taylor felt that she had been injured by the unauthorized biography, she could sue for defamation or invasion of privacy.
In 1994, Elizabeth Taylor sued NBC television to stop it from making a movie of her life, claiming that the movie would violate her right of privacy. The court refused to grant her injunctive relief to stop the movie. She was free to sue for damages, if she could prove damages. The movie—Liz: The Elizabeth Taylor Story--was made and broadcast, without incident.
There is also a right of publicity—the right of a person to control and benefit from use of his or her name and likeness. But most state right of publicity statutes or the states’ case law exempt the use of a celebrity’s name or likeness in a novel, play, biography, or film.
To the extent that someone’s life is well documented, one could make a movie or write a biography without permission. NBC did. Kitty Kelley did in her biographies of Taylor, Frank Sinatra and the Royals. But if the subject of the film or book feels they have been damaged, they can try and sue. To win damages in court, the individual will have to prove damages, which is sometimes very difficult, and why many celebrities don’t sue. Still, if you’re the one who is sued, that means you have to go to court.
What acquiring the rights to someone’s life story does is give you, basically, a series of waivers and releases to prevent suits for libel, invasion of privacy, or violation of the right of publicity. There will be normally a provision that gives the person or entity that buys the rights the authority to embellish, fictionalize, dramatize and adapt the life story and a warranty from the individual not to sue for an invasion of his rights of publicity and privacy or libel.
The person who writes the authorized biography also has an edge over the unauthorized biography, and it’s not just the fact that he or she has life story rights. It’s the “authorized” label.
It isn’t just the individual who is the subject of a film or book who may be asked to sign a life story agreement but anyone who is portrayed in a movie based on a person’s life or some other historical incident.
So, do you need to get life story rights? It depends. If the person being portrayed is living, it is usually a good idea. Those who finance the project may require it. But in some circumstances, it may not be possible, and you will be put in an unauthorized biography position with all of the risks. It again involves a risk-benefit analysis that you will have to work out with your producer or publisher and the money people.
If you decide to pursue acquiring an individual’s life rights, hire an attorney to make sure that all of the various potential legal actions are adequately dealt with. But, and this is the most important thing of all, since you are asking the individual to sign a complicated legal document, walk them through it personally—in person or on the phone—so that they won’t get spooked. They’ll still want to talk to a lawyer on their own, but it’s the difference between an individual bringing in a lawyer, who will probably be working on a contingency arrangement and will earn more if you pay his client more, and his saying to the lawyer, “I think they’re trying to pull something over on me. Help me out!” and his saying, “I like these people. Just make sure this is ok.”
The individual will want assurances his or her story will be treated with respect and dignity, and you presumably will be able to give those. He or she may ask for script approval, which you will probably not be in a position to give. A usual alternative is an invitation to the set, a credit as technical advisor. The director and writer will not be bound to follow their input, and sometimes—as far as capturing the period of the story—the advice the individual gives can be valuable.
What if the person being portrayed is dead? Under the law of defamation, only the person whose reputation is injured can sue, not the family. Hence, the expression, The dead cannot sue for libel. The right of privacy likewise ends with the person’s life. In some states, the right of publicity can be inherited, but the exemptions for biographies, films, and plays still exist.
However, legal considerations are not the end of it. I was giving a course for the New York State Bar Association on the topic of fictionalization in fact-based films and someone asked if it was still a good idea to work with the family of the person portrayed, even though the person portrayed was dead and the family could not sue for libel. I said it was a good idea. A young man working for a large law firm stood up and told me that was crazy, that by doing that you could end up with brother-in-law who wants to be an associate producer.
I answered, “It’s sometimes a question of whether you want to get the film made with a brother-in-law as an associate producer or have family anger sink the film. And, believe it or not, not every brother-in-law wants to be an associate producer.”
Hollywood film history supports this. M-G-M lost a famous suit in British court concerning the movie Rasputin and the Empress in 1934, and shortly thereafter movies began to carry disclaimers saying, “The people and events depicted in this photoplay are fictitious and any resemblance between people living or dead is purely coincidental.” This made Hollywood litigation shy. A series of biographical films about Louis Pasteur and other 19th century legends produced some negative reaction from descendants, and Hollywood reacted.
In the 1939 film Jesse James, Jo Frances James, Jesse James’ granddaughter, is given an opening screen credit as “Historical data assembled by,” even though the film is so fictionalized there’s a question about what she did, if anything. For The Story of Alexander Graham Bell, made the same year, Mrs. Gilbert Grosvenor, Bell’s daughter, had official script approval. Even more recent film biographies that have been more “warts and all” than these 1930s films, have found it best to work with the families, if they can.
Why? There’s the “authorized biography” label again, with the family giving approval. But there’s also potential hell to pay if they don’t approve or just feel neglected. Unlike in the 1930s when dismayed family members wrote letters of complaint, today they go to the Internet, create a website called thefilmaboutmyfatherisalie and go on cable television to denounce the film, even before filming starts. A film producer may send family members a shooting script to show that the film’s portrayal is faithful to the life, and an angry wife, daughter, or son will put it on their website with annotations of inaccuracy. They’ll even say, “Sure we’re violating your copyright. Sue us. We can use the publicity.”
Sometimes they can never be comforted, and you’ll have to go with the flow. But it seems to me it’s worth a try. Having family members read about a film in the newspapers seldom works out well.
Copyright 2012 by John T. Aquino. This article does not constitute a legal opinion and is intended solely for educational purposesv
