Cinema Law: Do You Need Adaptation Rights for Fact-Based Material?

Q: I’m really interested in making a film about a real-life event, but I can’t afford to secure the rights to the book that recounts it. Since the story is true (and has been documented in newspapers), would I still need the rights to the book to tell this story?

There’s really no getting around the fact that if you want to base your film off a pre-existing source material, you nearly always need to acquire the rights. Section 102 of the Copyright Act states that all literary works—articles, essays, novels, textbooks, etc.—are protected, regardless of whether the work is designed to entertain or educate. Using that work without permission from the copyright owner would constitute infringement and make you liable for damages.

But while copyright law protects “original works of authorship fixed in any tangible medium of expression,” a.k.a. art, it does not protect ideas, facts, concepts, procedures or discoveries. In order to qualify for intellectual property protection, there must be a requisite level of creativity to create that expression, and facts simply do not rise to that level. Facts can neither be created nor destroyed. No amount of creativity can create or alter a fact. They cannot be owned; they simply are. As a result, no one can monopolize a fact and foreclose others from using it. That’s how you can have a hundred different books about the life of Abraham Lincoln without publishers suing each other into oblivion (although that does sometimes happen).

While a historical fact may not be protectable, however, the artistic expression of that fact is. If an author uses a particular editorial flourish or uses a unique storytelling device to convey the narrative, you can’t replicate that without permission. That specific creative expression belongs to the author, even if the underlying fact is still usable. That’s the difference between knowing that Abraham Lincoln was the 16th President and referring to him as “a giant among giants. One of the most consequential and inspiring men to ever occupy the White House.”

So let’s say your script is based on a historical event and you’re relying on your own artistic expression to tell it. That’s not the end of the story, because there may still be other legal issues for you to resolve.

One big example: publicity and life rights of the people you’re profiling. While a person can’t possess ownership over the facts of his or her own life, they may still be able to control the use of their likeness, name or other personality traits in a commercial setting. That’s why lawyers consider acquisition of publicity rights to be an important part of the clearance process for fact-based movies. Why is it important? Because you don’t want to get sued for defamation and invasion of privacy. If your film contains even a hint that a real person (especially if they are still alive) might be portrayed in a negative light, nothing will shut down your production faster than a defamation suit.

In a best-case scenario, you don’t just want the life rights; you also want to secure the person’s cooperation (or the cooperation of their descendants). But at the very least, you want a written promise that they won’t sue you for using their story. If you’ve ever wondered why so many filmmakers change the names of the players, or create new or composite characters… now you know. They probably couldn’t secure the life rights.

Unlike copyright, which is governed by federal law, publicity and life rights are governed at the state level. As of this writing, 27 states have some form of statutory or common law protecting publicity rights, so make sure you know what your legal obligations are before you roll film. MM

Have a legal question you want our advisers to answer in a future installment of Cinema Law? Send it into staff@moviemaker.com with the subject line “Cinema Law Question.”

Gregory R. Kanaan, Esq. is a Boston-based attorney representing artists, filmmakers and designers in Massachusetts and New York. His practice focuses on entertainment and art law, as well as intellectual property issues. He has resolved disputes involving copyrights, publicity rights, trademarks, and contractual disputes for a wide range of independent filmmakers and design professionals. Prior to becoming an attorney, Mr. Kanaan was a television producer, creating documentaries and series for The Discovery Channel, Court TV, TLC, and A&E, among others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most.

The answers to legal questions provided here are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in this article is not intended to create a lawyer-client relationship between Mr. Kanaan and a reader.

Image from Lincoln courtesy of Walt Disney Studios Motion Pictures.

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