Q: Last summer I read a book by a local author, the true life story about her survival as a 7-yr.-old Ukrainian girl in various work camps during World War II, culminating in internment at Dachau 5 months before it was liberated. I and members of my production crew loved the story, all were anxious to produce it, so I optioned the book and started to co-write the screenplay adaptation.
While reading the book over a few more times, red flags started appearing in her story, impossible situations that cause me to doubt her legal ethics. (Think Oprah) I've contacted several organizations in the pursuit of any records that might exist of her (or her mother) ever being in Dachau. The request I submitted to my final source in October has yet to be answered. Meanwhile, the clock is ticking on the option.
Half my production team have stated they will back out of the project if proof isn't found. The other half agree that it's a great story, but they're not certain what the legal and career ramifications would be if we produced a film based on a book that may be fraudulently promoted as a true story.
If no proof can be found, would you advise it best to get out of the option and drop the project? Or, if enough changes were made to the script, would it be acceptable to state in the film credits that “This story is loosely based on certain events depicted in the book titled “_______” by ________?” (If we continue on with the project, the option provides credit for the book and author in the film credits.)
What would you advise is the prudent and ethical thing to do based on lack of proof?
A: This is a complex question that turns much more on the business aspects than on the legal or ethical issues involved. From a legal standpoint, if you've suffered some kind of detriment as a result of your reasonably reliance upon false representations made by the author, you're a victim of fraud. Fraud is frequently grounds for recision of a contract. (“recision” is essentially the cancellation of a contract and returning the parties to the position they held before entering into the agreement).
Here, however, rescinding the contract and getting your option money back may not be an appropriate (or desired) remedy.
The fact is, a good story, whether based on true events or not, is still a good story, and it really remains up to you as a filmmaker to decide whether it's worth telling as a film. If so, go ahead and produce a film. If not, get your option money back and move on to other things.
If you do decide to proceed with a film, the issue then becomes one of whether you can characterize it as “based on a true story” Absent convincing proof that the story is really true, I'd recommend against stating so. It's never appropriate, ethical or legally justified to make false representations in advertising or promoting a product. Instead, you can still honestly and ethically state that the film is “based on the book/novel by____”. There's really no need to qualify things further.
If you believe that the value of the story is diminished by its characterization as fiction, then perhaps there's room for a renegotiation of the rights fees. I recommend that you consult an attorney about this. If a factual investigation is warranted, you may also want to bring in an investigator or researcher.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.
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