Q: Do I need to obtain life rights before making a film about that person?
Writers get inspired to write a script after they’ve read an article about a real-life hero in Vanity Fair. Producers see a great idea for a film after they’ve read an interesting Op-Ed piece in The New York Times. And the very first question that person asks: How do I get the rights?
But that’s not necessarily the right question. The real question is: Do I need any rights?
Let’s first take a brief look at public domain. Facts and events are in the public domain. No one can “own” the date of an election or the fact that the grass is green or the fact that 2 + 2 = 4. But, if you write about any of these facts in an original way, your original writing is protected by copyright. If you hear or read an account of a true event, you can use the facts to your heart’s content; you just can’t use the other person’s way of telling those facts.
Using this logic, it becomes apparent that the facts related to a person’s life story are also public domain. More interesting than 2 + 2 = 4, Gwyneth Paltrow’s divorce from Chris Martin is a fact. One can search court records and get information about the divorce proceedings – all facts. The birth of Charlotte to Prince William and Kate Middleton – facts. Anyone can write about these facts without obtaining permission to do so. What one cannot do is take the way in which these facts are expressed or written and use them without permission.
The essential ingredient present in creations, but absent in facts, is “originality.” Are you telling a story that has already been told or are you using facts to create your own story? In other words, if you love the expression of a particular article and want to use the story as written in the article, you had better get the rights to that article. However, if you are simply culling facts from that article and it is one of many sources that you are using to craft your own story, you don’t need to.
Even when something is in the public domain, it is often a good idea to acquire an underlying property. The reasons are multi-fold. For one, it makes the studios and financiers feel more comfortable. 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. And, the writer or the person who lived the story might have some juicy, hard-to-find information that was never used or publicized should you purchase the rights to their story.
Still, obtaining life rights can often prove to be difficult if not impossible as real-life individuals on which the characters are based might be less supportive or helpful. We’ve had many clients attempt to acquire life rights only to find that the subject would only participate if he/she had certain approval rights with regard to the script and film, wanted unreasonable amounts of money for such rights, or proved to be so difficult, the filmmaker wished they had just proceeded without even trying to obtain the rights.
This brings us to another important point: a filmmaker should always keep in mind that there is a risk in asking for life rights, but not successfully acquiring them. This can become a real problem when seeking E&O insurance. The application for E&O insurance has a question that reads something like, “have you negotiated for and failed to acquire a license for the rights of any person featured in your film?” If you have to answer that question “yes,” the underwriter will likely view that as a “pre-existing condition” (to analogize it to health insurance) and will not provide coverage for claims filed by that person from whom you failed to obtain rights. And that could put a complete stop to your film. So, before asking for rights, be pretty darn sure you’ll be able to acquire them.
Bottom line: As a filmmaker, whether or not you acquire life rights for a story based on public facts will ultimately be your decision. Remember, facts are in the public domain. So if you feel that you can successfully and accurately tell the story without any help or guidance from the subject, then go right ahead. The law does not require you to acquire the life story rights to do so. MM
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Lisa A. Callif is a partner with the entertainment law firm Donaldson + Callif and can be reached at firstname.lastname@example.org.
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 Ms. Callif and a reader.
Featured image courtesy: Focus Features. Eddie Redmayne as Stephen Hawking in The Theory of Everything (2014).