Question:
I have written a dramatized musical on the story of the lives of the founders of a well-known organization (now run by a foundation). There are four founders in the story – one is still alive and three are deceased. There are also three children in the story who are still alive. I have the following questions about life story rights:
1) I have been told that if a person is, ‘famous’ or ‘a public figure’, I can tell their story as long as I do not defame them in any way, shape or form. I have been told that in this circumstance their life stories are public and therefore no rights are needed to tell their story. Is this correct and if so how do I determine if a person is famous?
2) If I need to get Life Story rights for the deceased founders, do I have to get them from the foundation or their surviving children (all eight of them) and must it be individually or on one document?
3) Do I still have to get life story rights for the children who appear in the story?
4) As the writer do I have to get all of the above arranged prior to getting a Producer on board or will a Producer take care of it?
Answer by Brandon Blake, Entertainment Lawyer:
Thank you for some great questions about life rights and when life rights need to be obtained. Probably more than ever, studios, networks and publishers are seeking out dramatic, real life stories as the foundation for new movies, television series and books, so the acquisition of those rights is becoming increasingly important. Having represented both sides, working both for the rights holders and at other times producers looking to acquire the rights, I have a great perspective on the legal and negotiation issues involved. Because this is a multi-part question, I will answer each question in order.
1) Public Figures and Defamation: Nothing causes more confusion among writers and producers than laws regarding defamation. The United States Supreme Court created special rules regarding how “public figures” can bring defamation suits against media defendants. While these court decisions are somewhat complex, the relevance to the entertainment industry is limited.
The limitation comes from the fact that these rules only deal with defamation, and there is a lot more at stake in life rights than merely releases from defamation claims. Life rights are a collection of federal, state and common law rights that the life rights holder owns or controls, including defamation, false light, invasion of privacy, right of publicity, copyright and even trademark. Of all those rights, the constitutional rules regarding defamation only apply to one set of rights held by the rights holder. It is also not true that public figures have no protection from defamation, although there is a much higher standard to be met by the public figure plaintiff than by an ordinary citizen.
However, for the public figure, there is much more likelihood that such a person will hold a right of publicity to his or her likeness and biography rights. For a media production about the public figure, these rights of publicity would need to be acquired, regardless of whether or not the work was defamatory. This issue is not merely academic either. The estates for deceased celebrities like Elvis Presley, Marilyn Monroe, and even Mark Twain are out there actively protecting the publicity rights of thousands of noteworthy individuals of the past.
2) Where to Acquire Life Rights: Generally, the estates for celebrities will maintain the life rights and be the principle source for licensing the rights for entertainment projects. However, the estate is not necessarily the only source, and the children, family, and even friends of the individuals might be sources of rights. When dealing with sources other than the estate, care must be taken that the party being negotiated with really has the rights needed for the story. There might be a need to exclude or fictionalize certain characters and parts of the story when the rights holder does not have all the rights to the story a producer wants to tell.
3) Rights From Celebrity Children: Celebrity children are treated like any other person. If the child is going to be part of the story, then their story rights must be acquired. It all depends on the story and whether or not those rights are necessary for telling the larger story of the work.
4) The Writer’s Responsibilities: This is more of a business question than a legal question. I will say that the most successful writers I have worked with do take on the task of acquiring the underlying rights themselves, because that is where a lot of the power of the story comes from actually. Letting a producer go out and acquire the life story rights might put the writer in the position of being kicked out of the project by a thorough re-write, while if the writer has acquired the life rights, the writer becomes absolute controller of the project.
As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects and television series for more than 16 years. Please feel free to contact my office about a quote.
- By Brandon Blake, Entertainment Lawyer