Asked and Answered: Do I need a release to tell a true story about a person?

“Asked and Answered” will be a new occasional feature of this blog.  From time to time, I'll answer some of the most frequently asked questions I receive in my practice.

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.

Q: I have collaborated on a screenplay about a famous person with the authorized biographers and writers of a well-known book about the man. The screenplay tells the story of specific time spent with other famous personalities.

Since we are writing the screenplay from the authorized biography and because each of the principals are deceased, do we need to get authorization from each estate should someone decide they would like to produce this screenplay?  I do believe the wife of the subject is still living.

Also, I have written a stage play about a young man who survived an ordeal with a cult. I went to high school with him. He is deceased, as are his parents, both of whom are featured in the play. Throughout the play, I have him interact with a number of people that are still living.

Again, do I need to get the approval of the surviving family members? A sister and brother are still alive. And do I need to have the real people who appear in the play sign some kind of release? By the way, each of them knows about the play and has read it.

A: While it is generally a good idea to obtain the consent of the subject when creating a biography, it is not always possible, nor is it always beneficial from a marketing standpoint.  Although legally, there is no strict requirement that a person's consent always  be given if you're presenting truthful, public information about the subject, the “best practice” in the entertainment industry is to obtain consent and releases wherever possible.

It's invariably easier and more cost-effective to get the required permissions before shooting a film, than to fight a lawsuit claiming a violation of some right.    Insurance companies that cover film productions expect to see these consents, or detailed, legal explanations for their absence (usually an opinion letter from the producers' lawyer).

The fact that certain of the people are deceased has little bearing on the situation.  Since many of the rights involved are considered “property” (rather than personal) rights, they survive death and are passed on to a person's heirs.

Since you mention that your screenplay is based on an “authorized” biography, the book authors have presumably secured the necessary permissions.  It would be a very good idea to review these documents with your attorney to ensure that all is in order, and that the permission covers the right to create a film, as well as the book.

As for the play based on a real person, depiction releases are a very good idea.  Since you mention that the family are aware of the play, obtaining their consent shouldn't be too difficult, assuming your portrayal isn't unfavorable to the parents and sibling you're depicting.

When writing stories, about real people (whether as books, articles, plays, or screenplays), there are several legal issues to be considered. Writers need to be mindful of issues relating to the law of defamation, rights of privacy, and rights of publicity.

DEFAMATION

The law of Defamation encompasses Libel (written or recorded statements) and Slander (spoken statements).  A statement is defamatory if it is a FALSE statement of FACT that's published (to a third party) about a person, and causes that person injury to his or her reputation.

Statements of OPINION and those that are TRUE are protected forms of speech under the 1st Amendment, and thus are not conisdered defamatory.  Consequently, consent is not required from a subject about whom you're telling the truth.  But, care should be taken when writing such material that ALL events portrayed are supported by two or more corroborating sources.    Most Film and TV Production Companies (more specifically their insurance providers) will require an annotated script identifying these sources before greenlighting a project

Of course, if you've fictionalized or embelished the story in any way, it is absoultely essential that the person depicted (or his/her heirs) give their consent.

RIGHTS OF PRIVACY

People who are in the public eye  may have a somewhat lower expectation of privacy (at least when their activities occur in public) than others, however when writing a biography about a famous person, writers should also be sensitive to the privacy rights  of those who are depicted interacting with the celebrity.  Spouses, family and friends of a famous person do not give up their privacy rights merely by associating with a celebrity.

Privacy rights include:

1.  The right to be free of unreasonable intrusions into one's solitude or seclusion.

Generally, this is not a problem in narrative films, since cameras and microphones will not likely invade the private spaces in which the subject has an expectation of privacy.  For Documentaries, however, this is a major concern.

2.  The right not to have private, embarassing facts about one's self made public.

This is one of the more common complaints we see.  If your film depicts a person who, for example, is openly gay, but whose partner is not, that partner may view  public disclosure of that fact as embarassing.  Revealing peoples' drug use, sexual preference, health status, and other similar information can give rise to liability, unless there's a legitimate public interest in the information being made public.

3.  The right not to be presented or depicted in a false light.

Even true statements can sometimes be assembled into a story that, taken as a whole, creates a false impression about a person.    Doing so can give rise to considerable liability.

4.  The right not to have one's name or likeness misappropriated.

In most cases, merely mentioning a person by name, or even depicting a person as a character in a biography des not violate this right.  Where footage or photos of a person are used, however, it is absolutely essential that consent be obtained from that person (or his heirs) for the reasons discussed below.

RIGHT OF PUBLICITY

The right of publicity is, essentially,  the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one's identity. It is generally considered a property right (as opposed to a personal right), and so can survive the death of the individual (although this may vary from state to state).

Generally speaking, the telling of a person's story will not be considered a “commercial use” of the person's name, etc.  However, if the person's name is also used as the title (or perhaps sub-title) of a film, it may indeed be considered commercial.