Shelley H. Surpin, Esq. tells filmmakers how to make movies about real people.

I am often asked by producers, writers and directors if they need to acquire the “life-story rights” of a particular person whose story they would like to develop. Filmmakers have been fascinated with biography as a rich source of narrative from as early as Abel Gance‘s Napoléon and Orson Welles‘s Citizen Kane to Patty Jenkins‘s Monster and Bennett Miller‘s Capote. The lives of politicians, criminals, singers, athletes and generals have inspired much award-winning cinema, both mainstream and indie, and it is widely thought that such true stories can act as marketing hooks. When the subject is well-known, the film has a built-in audience; when the subject is obscure, the tagline “based on a true story” appears to give it weight and veracity.

However there really is no such thing as “a life-story right.” The pattern of incidents comprising a person‘s life is not a piece of property — not even intellectual property to be copyrighted, trademarked or patented. This truth does not give a free pass to the filmmaker wishing to exploit another‘s life narrative but rather uncovers the entrance to a thicket of issues. If the proposed subject is alive, the subject has rights of privacy that may be violated by a portrayal that strays from the literal truth, which is often the point in dramatic filmmaking. And every other living person portrayed in the story has the same rights of privacy. The claims that may come are generally styled as invasion of privacy, defamation and false light.

A good solution, if available, is to enter into an agreement with the subject for a release of claims. The release, i.e. the promise not to sue, is central to the transaction with the subject, but there are additional benefits the subject can confer, such as: 1) exclusivity: the promise not to cooperate with any other filmmaker; 2) access to source material such as journals, photos and letters; and 3) an agreement to deliver or use “best efforts” to deliver similar releases from relatives and friends (not necessarily upon the same financial terms). The consideration for the release can include money (some now, more later), consultations, credit, approvals, access and involvement, all of which must be calibrated not to overturn the project. Some years ago a client came to me with an option on the work of a world-famous playwright who required that any film adaptation “maintain and preserve the spirit of the underlying work.” No one would finance the film because no one could be sure that the playwright would ultimately feel that the film maintained “the spirit” of the play. Similarly releases that contain an open-ended approval rights can cause projects to be rejected by would-be financiers.

Is the failure to get a release fatal? Not necessarily. One approach that dispenses with releases is to fictionalize and broaden stories in such a way that no one, including acquaintances of the subjects, would suspect that the projects are based upon the subjects. In the alternative, no release is required if the project material is truthful, or, in the case of public figures, not “knowingly or recklessly false.” If fanciful, no release may be necessary if the portrayal is not harmful to the subject‘s reputation. In a film based on actual individuals, whether or not releases have been obtained, the screenwriter will be required for Errors and Omissions insurance purposes to create a painstakingly annotated version of the screenplay, which documents the source of each line of dialogue and the creative “lineage” of each character. The annotated script identifies its factual basis as well as the fictionalized content, the material for which there is no reasonable belief in its factuality. The script can then be analyzed for its potential damage to the subject‘s reputation. The analysis will be very different if the subject is Charles Manson or the Dalai Lama.

While the pattern of incidents in a person‘s life cannot be exclusively owned, a person‘s name and likeness may be protected from commercial exploitation on items of merchandise and in connection with advertising, commonly referred to as a right of publicity. The question arises as to when does the use of a person‘s name and likeness in a fictionalized motion picture constitute illegal commercial exploitation. The answer may vary from state to state, based on the domicile of the subject. In California, for example, a property right is enjoyed by the heirs of deceased personalities whose name and/or likeness was valuable at the time of their death, but narrative films are expressly excluded from being considered as items of merchandise or as advertising. Living persons in California also have a cause of action against persons using their name and/or likeness in products or advertising, but the safe harbor for narrative films is not as explicit and is more a question of the surrounding factual circumstances. In other states, like New York, one‘s right of publicity ends at death.

Filmmakers often want to know if they need to secure rights in a particular piece of source material relating to the subject, such as a book, magazine article or play. While a life story is not copyrightable, a book about that person‘s life is protected by copyright, but the copyright does not extend to the facts of the person‘s life. If Robert Crumb was born in 1943, a biography of Robert Crumb cannot copyright the date of his birth or any other facts concerning his life. However the author of a biography may have mixed fictional elements with the facts and/or may have created a unique and original selection and arrangement of the facts, all of which are protected by copyright, along with the author‘s literal words, and cannot be used without a license. Finally the filmmaker should seriously consider whether the particular source material will add credibility to the project.

Filmmakers, like all artists, have always borrowed liberally from their observations of life, whether or not their films are labeled “Based on a True Story.” We continue to be amused and informed by Jane Austen‘s characters without knowing precisely from whom she drew her portraits. The same story can be presented in two different ways — as wholly fictitious, or as “Based on a True Story.” The filmmaker who decides to base his work on recognizable persons will have to factor in legal and marketing considerations with his creative decision. He or she will find that the single query posed at the beginning of this article opens up into a series of interrelated questions that involve rights of privacy and publicity and copyright, such as: Is the subject living or dead? How many living persons related to the subject will be portrayed or appear to be portrayed? Will the portrayal of the subject appear favorable to the subject? Is the subject‘s name important to the project? What is the subject‘s domicile? What is the likelihood that a release could be negotiated? What kind and quantity of source material is available? Has this subject matter been visited creatively by others? Only a careful analysis of the answers to the above inquiries will tell the filmmaker if he needs a release or many releases or can proceed with none.