Rights of Publicity and Privacy in True Crime Stories – Entertainment Law Asked & Answered

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https://firemark.com

Tom has a terrific question about recounting a true-crime story from long ago…

Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

OK, here's Tom's question:

“I am finishing my first draft on a true story about the murders of four of my family members 66 years ago and the transcripts of the trial cannot be found in Jackson, Mississippi. Can I fictionalize the trial / Jury Room / Names of unknown (and probably not alive), activities and dialogue in my inspired by a true story. The outcome of the Trial is all i can find in a 1950 Life Magazine Article with pictures. This is a forgotten historical event and will add a refresher chapter to our national history.”

Well, this is a little sticky… I’d counsel caution when fictionalizing things involving real people and events.  At very least, be sure that you’re not making false statements about living people that would damage their reputations. (That’s defamation).  If you recreate a scene, but inadvertently get some facts wrong, but there’s no HARM, you’re probably OK.  But incorrectly saying a person was on the jury, when he or she wasn't, or vice-versa could be troublesome. Especially if the story suggests some wrongdoing or error by the Jury.

Of course, anyone can sue anybody over anything at all, so you want to provide them with as little ammunition as possible by taking whatever steps you can to assure that the account you present is as truthful as it can be. Document your sources for everything that you can. The best practice for this kind of thing is to have 2 or 3 sources for each fact.

66 years ago is a good long time, but some folks may still be alive. I’d suggest tracking them down and interviewing them. Get them to cooperate, if possible…

When you get into using people's names, likenesses, and personas, you're talking about either Rights of Publicity or Rights of Privacy.

The Right of Publicity is recognized in about half of the US States, as well as some foreign countries. This is the right of a person to control any kind of commercial uses of his or her name, likeness or persona. In some places, that even covers look-alike and sound-alike performances.

But remember that I said “commercial” uses. Here, you're talking about telling a story… It's a narrative, and it's based on true events. So, there's an element of newsworthiness, and a public interest in this material being given some exposure. And… You're not selling a product or service or suggesting that the people in question are endorsing anything… So, the right of publicity isn't likely to be an issue…

But rights of privacy might be a bit trickier. For example, if a person was, 66 years ago, a notorious figure in the community, but has since led a quiet, respectable life. Retelling their story might constitute an invasion of their privacy, under a theory called “Public Disclosure of Private, Embarrassing Facts”. Generally speaking, these kinds of cases come down to whether a reasonable person would find the re-hashing of things “highly offensive” after so many years. So, I'd be cautious here.

You also want to make sure you're not presenting people in a false light… again, in a way that would be highly offensive to the average reasonable member of the public.

But, bottom line, finish writing the script… Then, get someone objective to go through and highlight every situation where someone’s reputation might be injured, or one of these other issues might be involved. Then determine whether that person is still living, and whether that reputation is really in jeopardy, and if so, get them to cooperate, sign a life-rights release, or something.

It's a good idea to have a lawyer do a full, script-clearance review to alert you to any potential trouble spots, and provide you with the strategies and documents you need to reduce or eliminate the risks.

Finally, find out what happened to those court records. If a whole bunch of records were destroyed, that’s one thing, but if it's only this case’s record that's missing, that raises additional questions, and might make an interesting postscript to your film.

Well, that about does it for this edition of Asked and Answered. If you have a question for me, just visit https://firemark.com/questions and let me know.

See you next time!

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