Cinema Law: How Do I Tell One Man’s Story?

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Q: I recently read an article in my local paper about a man who has survived a number of natural catastrophes. I found his story fascinating and would like to make it into a film. To do this, would I have to acquire the rights to the article from the writer or acquire the individual’s life rights?

A: There are two separate but parallel ways to acquire the rights to turn this story into a film. The first is to acquire, from the article’s copyright owner, the right to adapt the article into a screenplay. The second is to acquire the rights to the subject’s life story directly from him. I suggest you do a form of both.

If it is the article itself—its tone, theme or the way in which it portrayed the man’s life—that initially drew you to the story, and if the article is really what want to adapt (as opposed to making a different film about the man’s life), you must obtain the film rights to the article. If you were to only obtain the rights to the man’s life story, you may expose yourself to a copyright infringement suit if your film even remotely resembles the events, tone or plotl ine of the article. If the article has gotten widespread exposure (e.g., if it appeared in the New York Times or another national publication), such a lawsuit would be a near certainty. You’ve got to get the rights to the article first.

The copyright in the article is owned by either the article’s author or, more likely, by the newspaper itself (if the author is an employee of the paper and not a freelance writer, the paper owns the copyright as a “work made for hire”). You therefore need to identify who owns the copyright in the article; contacting the newspaper is the best way to start.

You (or ideally your agent or lawyer) should contact the newspaper’s publisher, express your interest in the article and make an offer to option it. An option is the exclusive and irrevocable right to purchase, at a later time, certain defined rights in a literary or intellectual property. So, for a relatively small sum up front (often 10 percent of the purchase price), you can secure the exclusive right to adapt the article into a film at a later date. Of course, in order to exercise the option and make the film, you will eventually have to pay the full purchase price.

You want to make sure you are granted the broadest rights possible in the article, including the rights to adapt it in any and all media, to make changes to it, to use its title, to publish screenplays or novelizations based on your film, to make derivative works like sequels, etc. The article’s copyright owner will want to reserve certain rights for him or herself, including publication rights, the right to publish follow-up articles and more. This is all open to negotiation.

The other route is to obtain the subject’s life story rights directly from him, bypassing the newspaper entirely. Because of the risks of infringing the newspaper’s copyright in the article mentioned above, this is not advisable. I would recommend obtaining the rights to the article in conjunction with a short “Release to Portray” from the article’s subject. A Release to Portray is a letter signed by the subject granting you the right to portray him in the film and releasing you from claims for defamation or invasion of privacy based on your depiction of him. This release can usually be secured along with the option from the newspaper, and you can use the reporter’s relationship with the subject to help you get the subject to sign the release. A Release to Portray is preferable to a full option of his life rights because, usually, you won’t have to pay the subject any fee (or, if you do, it can be minuscule). But it is crucial to obtain the subject’s consent in some form; otherwise you run the risk of getting sued by him!

If you can get both the film rights to the article and a release to portray the article’s subject, you can feel secure that you have the rights necessary to make your film, and you are free to adapt the story into the next award-winning blockbuster.

Chad Fitzgerald, an attorney at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, specializes in entertainment and business litigation as well as transactional matters for entertainment industry clients. He has represented actors, musicians, professional athletes and production and distribution entities, as well as clients in the toy, apparel, yoga and diamond industries, entertainment guilds, personal and business managers, and talent agents and agencies in disputes in California and federal courts as well as before the California Labor Commissioner and the guilds. Mr. Fitzgerald handles contract, profit participation, financing, distribution, copyright and trademark disputes in the entertainment industry as well as business litigation matters involving contracts, sales, employment, partnership and franchise disputes, fraud, trade secrets, rights of privacy and defamation. He also negotiates agreements for intellectual property rights holders, entertainment industry executives, producers and independent filmmakers.

The answers to legal questions provided by the lawyers of Kinsella Weitzman Iser Kump & Aldisert, LLP (“KWIKA”) are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in the articles is not intended to create a lawyer-client relationship between KWIKA and you. The opinions expressed in the postings are the opinions of the authors and do not reflect the opinions of KWIKA, its employees or agents.

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