Q: I am writing a film based on a documentary I wrote, produced and directed in 2005. When I made the documentary, all the on-camera subjects signed release forms. Do I still need their life rights for the scripted version of the film? What if I fictionalize the names and events?
There seems to be two main questions here. First, whether the releases for your documentary will give you your subjects’ life rights for the scripted film. And second, if the release forms don’t cover their life rights, if there’s anything you can do to get out of acquiring them. In this case, the answer to both questions is “no.”
Why Don’t the Release Forms Cover You?
Depiction release forms do one thing only: They give you permission to interview a person on-camera and use his or her voice, name and likeness in a documentary. They are not contracts granting you the use of a person’s life rights. In fact, most release forms are very limited in scope and don’t even allow you to use the interview footage outside of that specific project. I know it’s easy to assume you’re simply telling the same story in different formats, so why can’t the release forms carry over? But the truth is the needs of a scripted film often differ drastically from those of a documentary. In this case, your release forms won’t apply toward the scripted version of the story because they were drafted specifically for the documentary. Remember that each film requires its own paperwork.
Why Do You Need Their Life Rights?
Life rights can only be granted by contract (preferably in writing), and even if you had the foresight to get one for the documentary, that contract probably didn’t give permission to reuse those rights in a scripted version of the story. Whenever you’re telling a true story, you have to get the life rights for each person involved for each individual production.
Why? Because you don’t want to get sued. Using someone’s life story without their permission could result in a lawsuit for defamation and invasion of privacy against yourself, the film’s financiers and any festival that screens the film or studio that releases it. Proving defamation can be quite difficult, but whether or not they’d be successful in court is less important to a studio than the mere fact that a legal action is taking place. Studios don’t want to get sued, and they certainly don’t want to get sued on your account. That makes them look bad for trusting you and it makes you look negligent.
In fact, most studios and festivals aren’t likely to buy or screen your film at all if your clearances aren’t buttoned up from the get-go. And insurance companies won’t insure the production (which is how you’d pay to defend against the lawsuit in the first place) if there’s a likelihood you’ll get sued because you didn’t secure those rights. In other words, failing to get the life rights can cause a domino effect that will prevent the film from ever being seen at best, or tie you up in years of litigation at worst.
I know what you’re thinking. Facts and events are in the public domain, so why can’t I tell the story anyway—especially if I’m part of the story? Well, that’s true. Facts are not protected by copyright law because facts cannot be created or destroyed. They are not property, even if they are a relevant part of a person’s life. But this isn’t about your rights as a storyteller. This is about getting your film in front of people. Would you really want to risk that by not asking permission ahead of time? Fictionalizing the names or events may provide some legal protection, but that all depends on how much fictionalizing you do. If you change too much, you’re no longer telling a true story. If you change too little, you haven’t solved the problem.
There are legitimate reasons why you shouldn’t tell a true story without getting the life rights of the people who were involved. Beyond the legal problems it could pose, without their involvement you may be missing out on critical insights and details that you weren’t aware of—things that could really make your film pop.
More than that, I think it’s bad karma to use someone’s story without their permission and involvement. It makes you look untrustworthy and unscrupulous. And even if you don’t think they’re going to sue, making a film with that kind of cloud hanging over you isn’t good for your reputation or long term viability as a filmmaker. After all, if the subjects of your own film don’t trust you, who else will? MM
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 of The Jinx and All Good Things, courtesy of HBO and Magnolia Pictures respectively.