Filmmaking:

WHEN DO YOU NEED TO ACQUIRE LIFE STORY RIGHTS?

Elaine Rogers, Esq. is a Principal in the Media & Entertainment Group at Fish & Richardson PC. and a film/television agent at the Kneerim and Williams Agency. She has served as a clinical field supervisor for internships in Entertainment Law for Suffolk University Law School and New England School of Law.

Elizabeth Jones is a third year law student at New England School of Law, and a legal intern for Elaine Rogers in the Media & Entertainment Group at Fish & Richardson, P.C.

Films that include life stories of individuals continue to be a popular genre in Hollywood, especially in the last decade. These movies have a dramatic appeal that touches audiences as familiar. In the past five years, numerous films based on real people became box office hits. A BEAUTIFUL MIND, ALI, RAY, ERIN BROCKOVICH, GOOD NIGHT AND GOOD LUCK, and WALK THE LINE, to name a few, were not only successful films but also garnered accolades for the actors who portrayed these characters. Will Smith received an Academy Award nomination for his portrayal of Mohammad Ali and Russell Crowe, Jamie Fox, Julia Roberts, and Reese Witherspoon all won Oscars for their roles. However, dramatizing real people can be problematic.

There are fewer legal issues in portraying someone who is deceased, since no right to sue for defamation exists or any right to sue for invasion of privacy, as these are personal rights that do not extend to heirs. However, using a deceased person’s name or likeness for merchandising purposes may transfer to a person’s heirs and estate.

The first question a producer, director, or screenwriter should ask when developing a factual story for the screen is what rights are required and from whom. This question is difficult to answer because it requires a factual analysis of the content the producer, director, or screenwriter intends to use and how they want to portray an event. A story based on one or more real people is likely to require some rights from those people. It may be best to obtain life rights and/or releases from all living persons depicted.

There are many benefits to obtaining life story rights. Life story rights agreements are often collaborative arrangements where the person selling life story rights consents to work with the purchaser. An exclusive right to use a person’s life story may provide a more in-depth access into the subject, their photographs, and other memorabilia, which could provide more back-story for the project. Typically, with a life story agreement the subject agrees to make himself or herself available to be interviewed or consulted, which allows a producer, screenwriter, etc., easier access to information that may become necessary further into development. These agreements also include provisions to assist the purchaser in securing releases from any third parties that may be necessary. In addition, the purchaser of life story rights can generally protect themselves from claims of defamation, privacy, and publicity by adding such clauses to the agreement.

Whether appropriate life story rights agreements are obtained, the producer should have his or her script reviewed carefully by a knowledgeable clearance attorney. The attorney can evaluate the works for potential pitfalls and recommend changes that may eliminate or reduce the risks posed by certain elements of the work. Fictionalizing the story so heavily that it no longer portrays real people can reduce the risk. Sufficient fictionalization may remove many of the legal hazards. However, heavy fictionalization, while often preserving the dramatic potential of the plot elements or fact situation, will not have the impact of a true story.

The general rule of thumb is that when telling the life story of a person you need to acquire life story rights for the material the person discloses, especially when you interview the subject or plan to use even a few of the person’s life experiences. Most importantly, when you use real names in a project you should most assuredly seek permission. Life story agreements are generally required for all major characters, including immediate family members of the central characters. The most difficult determination involves peripheral characters. A depiction release or waiver is more common for these characters. In the alternative, if you receive information in the public domain from a person you normally will not need a life story agreement, unless they provide personal experiences or anecdotes, you wish to use.

Without consent, such as a life story agreement or a release, there is a risk of lawsuit. Consent to any publication or dramatization creates protection against lawsuits, so long as the work does not exceed the scope of the consent. For example, the scope may include how much fictionalization the producer may engage in, and what areas of the subject's life may be depicted or may be prohibited from being depicted. Moreover, the subject may want approval rights to how his life story unfolds on screen, which are rarely granted. However, some (not many) studios/ financiers will agree to allow the subject the right to approve the script for any substantial factual inaccuracies and will carve out certain areas the subject does not want included in the screenplay such as derogatory or defamatory language or actions.

Additionally, it is important to remember that life story rights may be important to obtain even when the dramatization is not based solely on a person’s life story. Twentieth Century Fox discovered the importance of this when Scott O’Grady sued Fox claiming the movie BEHIND ENEMY LINES was based on events involving him. O’Grady was an Air Force pilot shot down over Bosnia in June 1995. He evaded capture and was rescued 6 days later. In Fox’s movie BEHIND ENEMY LINES, released in November of 2001, Owen Wilson’s character is a naval aviator who runs into challenges when his plane is shot down behind enemy lines. O’Grady claimed that Fox never obtained or sought his permission to produce the movie. The court determined there was sufficient evidence for this case to go forward on O’Grady’s claim of misappropriation of his name, likeness, or image that was not incidental nor for a newsworthy purpose.

A well-constructed life story agreement will grant the producer the right to portray, factually or fictionally, the life story of the subject and will contain a waiver of defamation claims as well as other provisions. While these agreements may be costly, it is a small price to pay to avoid the potential expense and uncertainty associated with litigation.

Elizabeth Jones is a third year law student at New England School of Law, and a legal intern for Elaine Rogers in the Media & Entertainment Group at Fish & Richardson, P.C.