One of the questions I’m often asked is, “Do I need to obtain the rights to someone’s life in order to write about them?” I’ve brought in Lisa Callif, a partner at the law firm of Donaldson and Callif, to help answer that question. Callif has helped steer many independent producers through this process, including on such films as “Devil’s Knot,” the real life story of three teenagers who were wrongfully convicted of killing three boys, and “Welcome to New York,” about Dominique Strauss Khan.
SS: Let’s start off simple. A lot of writers ask me, “Can I write about a real life person or do I need the ‘rights’ to them?” Is there a simple answer to this?
LC: The simple answer is yes. The law does not require you to obtain life story rights to make a movie that accurately portrays that person.
SS: What is one of the biggest misunderstandings about obtaining the rights of a person to write a movie about?
LC: That a life story rights agreement is an acquisition of an underlying right. The facts of a person’s life are in the public domain, so there is no need to acquire them. Rather, it is a person’s waiver of certain personal rights and an agreement by them to cooperate and consult in the making of the film of which they are a subject. The agreement is formatted like a normal acquisition of underlying rights because that is the tradition in Hollywood, and because most lay persons have the notion that they own something called “life story rights.” Besides, no one would sign it if it were correctly labeled as a “waiver of right to sue no matter how badly you muck up my life.”
SS: I notice that in almost every case with the studios, when they have a movie about a real-life person, they’ve either purchased a book about that person or obtained life rights through the person themselves or the family. If it’s okay to write about people without obtaining official permission, why do they do this?
LC: Despite one’s legal right to make a film without life rights, there are lots of good reasons to obtain them. Let’s look at the two most important: first, when you purchase someone’s life story rights, they waive the right to file a lawsuit based on a violation of their personal, privacy and publicity rights. In fact, it is the waiver of the right to sue you, no matter what you do to the person’s life story, that is at the heart of the life story rights agreement (especially for a deep-pocketed studio). This waiver not only provides you (and the others involved in the film) with great protection, it makes it easier to obtain Errors & Omissions (E&O) insurance, which provides you with coverage if anyone portrayed in your film decides to sue you. Second, the agreement gives you access to the person about whom you are writing. The person who lived the story always has information that is not publicly known and perhaps more interesting than what has already been published. Simply put, you often make a better movie with the participation of these people.
SS: Let’s take a specific example. Studios are constantly trying to make movies about Martin Luther King and getting rejected by the family. Why don’t they just ignore the family and make the movie anyway?
LC: Well, they just did. As I understand it, the filmmakers of “Selma” did not have the rights from the estate. That said, the hesitation to make a film without rights is the fear that someone will get upset and file a lawsuit. No one wants that. The King estate is very protective of its rights and not afraid to file a lawsuit. However, if a story is told accurately, the chances of a lawsuit lessen dramatically. It’s only if the filmmaking is sloppy or people aren’t honest that you can really get in trouble.
SS: But I’ve heard things like that the family owns the “I Have a Dream” speech and that you can’t use any parts of that speech in print or movies without paying them ridiculous amounts of money (I heard a recent quote of 300 words from the speech were going to cost one journalist $10,000). I’d consider that “facts” from the character’s life, but maybe speeches fall under a separate category that’s treated differently by the law?
LC: It’s true that the MLK estate has established copyright ownership over that speech, however, that would not prevent a filmmaker from using portions of it pursuant to fair use (of course, the use would have to fall within the parameters of fair use and that is something we would determine based on how it is used). And yes, a speech is quite different from “facts,” especially a speech that is written before it is recited. Under the 1976 copyright act (our current law), copyright protection attaches the minute you put pen to paper. It is debatable whether the “I Have a Dream” speech should have been granted copyright protection due to certain formalities that may or may not have been met, but the bottom line is that the estate was able to establish copyright ownership over that speech. The fact that MLK delivered that speech on the steps of the Lincoln Memorial in 1963 is a fact and may be used freely, but his written words, which have been copyrighted, may only be used with permission from the estate or pursuant to fair use.
SS: If there was ever an opportunity for a subject to sue over a movie about them, it was The Social Network. Mark Zuckerberg had gone on record as saying everything about that movie was false. Here’s a guy with a multi-billion dollar bank account. A lawsuit is a drop in the bucket for him. And there seemed to only be a positive outcome for him filing a suit (he repairs the bad image that the movie painted of him). Yet he did nothing. Did the studio dodge a bullet or did Zuckerberg not sue because he had no legal cause?
LC: I didn’t have any direct involvement in this film, but I would certainly guess it was the latter. There are potential other reasons as well – perhaps Zuckerberg/Facebook have other skeletons in the closet that they didn’t want known. Litigation is not only costly, time consuming and lengthy, but it also has the potential to expose things a person may want to keep private. Perhaps there were business and public relations reasons they did not file. Is it the right move for Facebook to sue, even if some of the allegations made in the film were false? How would Facebook users view that? Do Facebook users care about the allegations made in the film? Did it harm their business? Obviously not. Would it have if they filed a lawsuit? Probably not, but maybe litigation would not have provided any real benefit to the company.
SS: Just the other day, I reviewed a script called “Pale Blue Dot,” that covered the real life story of an astronaut love triangle (the famous “astronaut drove 500 miles in a diaper” story). The writers, however, changed all the names. Is this a simple way to avoid a lawsuit? Can I pick any real life story and simply change names and be immune from litigation?
LC: Short answer, no. Simply changing a name does not get a filmmaker even close to being safe. If you really don’t want a person to be recognizable, then you must make that person unrecognizable. Changing a name doesn’t do that.
SS: Last year, one of the studios optioned a huge article about the famous Venezuelan case where a dead man accused the president of assassinating him in a posthumous Youtube video. Do they now officially “own” that story? Would a rival studio be able to release their version of the exact same story without an option on any material? Or would the first studio be able to sue them?
LC: The studio will own that story as it was told by the author. However, the studio won’t own (and no one will own) the facts of that event. Anyone can write about these facts without obtaining permission to do so. What another filmmaker cannot do is take the way in which those facts were told in the article and use that expression without permission. The essential ingredient present in creations, but absent in facts, is originality. The question to ask yourself is – am I telling a story that has already been told? Or am I using facts to create my own story?
SS: One final question. There was another script sale awhile back that covered the real life story of that girl who freaked out in a Los Angeles hotel elevator and was later found floating dead in the hotel’s water supply. The writers just went ahead and created this whole ghost story out of it (with supernatural elements and all). So can you just take a real-life person and create an entirely made-up story around them?
LC: Because that girl is deceased, the filmmaker has a lot more leeway. When a person dies, their personal rights die with them, including defamation. One does need to be cautious about claims by heirs and others connected to the subject who are still alive. But if you’re writing about a deceased public figure, you can pretty much write anything. Also, even with living subjects, a filmmaker can take some creative liberties in establishing elements that are unknown (such as conversations). Courts call this “fictional embroidery.” This is permissible so long as the fictional elements naturally flow from the known facts and do not violate the personal rights of that individual.
I hope this was helpful. I might be able to send a couple of follow-up questions Lisa’s way. I’ll do so for the two most upvoted questions in the comments section and put those answers up within the next 24 hours. ☺
