by Usman Shaikh and Daniel Lopez
Filmmakers, producers and screenwriters draw inspiration from numerous sources. Sometimes from a vivid imagination, other times from previously created works and, in many instances, from the life events of real people. When depicting a real person’s life, you may wonder what kind of, if any, permission is needed from the person being depicted and whether there are any limitations to such depictions.
The law provides every person with the right to control the commercial use of his or her identity, such as name, image, likeness, persona, voice and other distinctive characteristics that could be associated with that person. This “right of publicity” prohibits someone from making money off of another person’s identity without that person’s consent. For example, you can’t use Dwayne “the Rock” Johnson’s image to promote your fitness brand without his consent. It would be a misappropriation of the Rock’s celebrity for your commercial benefit, directly in violation of right of publicity laws.
When talking about moviemaking in Hollywood, however, it’s a different story.
The 2010 picture The Social Network, directed by David Fincher, tells the creation story of Facebook and features portrayals of the real-life players in the saga, most notably Facebook founder Mark Zuckerberg. Zuckerberg never consented to being depicted in the film. In fact, he even expressed his dissatisfaction with the film and called out what he thought were inaccuracies. At first glance, you might think the film is clearly a violation of Zuckerberg’s right of publicity; no one would contest that the producers received a commercial benefit from releasing a film about Facebook and its CEO. However, courts make a clear distinction between “commercial speech” and depictions of real people in an “expressive work,” such as a motion picture or a book.
Expressive works are constitutionally protected against right of publicity claims; the principle being based on the Free Speech Clause of the First Amendment. The idea is you cannot restrict the exercise of free speech by preventing others from speaking about you, even if the speech is “commercial” in the sense that it generates profits. Courts are consistent in saying that the right of publicity does not outweigh the value of free expression, whether the form of expression involved is factual or fictional.
Using this same reasoning, a court ruled in favor of Time Warner in a lawsuit brought in connection with the motion picture The Perfect Storm, starring George Clooney and Mark Wahlberg, over the depiction of the real men on which the story was based. The court held that the commercial purpose did not apply to the film because it did not directly promote a product or service. In other words, The Perfect Storm was not using the depictions of the real men to promote a product or even the film itself, but rather the depictions were telling their story and, therefore, were an expressive work and protected under the First Amendment.
Some states also recognize a right of publicity for the deceased. In California, for example, a deceased individual’s right of publicity is protected for a period of 70 years after death, but applies only if the right of publicity had commercial value at the time of the individual’s death or because of the death. This right of publicity, even if applied, will be set aside when the deceased’s depiction is used in connection with a film that is considered an expressive work. To complicate matters more, the California statute only applies if the deceased’s last domicile was in California. If they lived in another state or country, then that jurisdiction’s laws would apply, which may result in less protective post-mortem rights of publicity or none at all.
Now that you know prior authorization is not required to make a movie about a real-life person, you may wonder why film producers secure life story rights at all. That’s because life story rights include more than just a person’s consent to be depicted in a film; they are, in fact, a bundle of rights and can be extremely valuable to a producer.
Along with the consent to be depicted in a film, a producer will also typically obtain a “depiction release” from the person being depicted. This release seeks to avoid any potential problems involved with the depiction. Although, as discussed, right of publicity claims will be barred by the First Amendment, there are other causes of action that can give rise, especially when the depiction of the real-life person is not favorable, such as false light, defamation or invasion of privacy. Even if you do your best to portray the person as accurately as possible, you still run the risk of being sued. The depiction release will release the producer from liability from such claims, which can give the producer more creative freedom in telling the story.
You can also negotiate other terms such as getting access to private documents and information otherwise not available to the general public. And that can be very useful if you want to make the story as accurate as possible or obtain secret information that could make your rendition of the story more valuable.
On a more technical side, securing life rights will makes it easier to obtain Errors & Omissions (E&O) insurance, which provides a production with coverage if anyone portrayed in the film decides to sue. It can also help in obtaining financing and pre-sale distribution for the movie as financiers and distributors will be more comfortable knowing that they are protected from lawsuits. One important thing to note is that when trying to obtain E&O insurance, insurers almost always ask whether any attempt to acquire life story right was made and got rejected. When that’s the case, the insurer will usually exclude coverage for claims brought by that individual from whom you failed to acquire rights.
To summarize, it is not always necessary to obtain authorization from a person whose life is depicted in your film or other creative work, especially if it is considered an expressive work. But it is important to evaluate the risks, especially if the picture is not favorable to the person being portrayed, and what advantages you could get out of purchasing life story rights.
U.S. Law Group specializes in the representation of producers and production companies, providing legal assistance through each step of film production from rights acquisition to production to distribution. Managing attorney, Usman Shaikh, has notable experience in life story rights, recently representing an Oscar winner in selling his life story rights to a major studio, representing a film producer in acquiring the story rights to a famous toy line, and setting up the life rights of a notorious cartél member, to name a few. To learn more about our Entertainment & New Media practice area, please visit our site.