This article first appeared in Entertainment Law Review and is republished with kind permission of the editor
The dominance of stories inspired by real events at this year's Oscars is indicative of the growing audience-led demand for true life stories both in film and television. Producers and screenplay writers of films such as "The Big Short", "The Revenant", "Joy", "Spotlight" and "Steve Jobs" faced the difficult creative task of adapting the narrative aspects of a true life event so that it translated into compelling viewing.
This article will explore the concept of 'life story rights' and provide ten top tips for film or television programme makers looking to create content on the basis of an individual's life story.
1. DON’T RELY ON THE TRUTH DEFENCE
The main risk facing producers who portray individuals in their content is the risk of being sued for defamation. A producer will often rely on the assumption that they are safe from a defamation claim on the basis that the depiction of an individual is true. However, there are inherent risks in this approach given that the portrayal of any individual is a subjective exercise in itself. Indeed, truth is a fluid concept. In the creative exercises of writing and directing, a scriptwriter or director may not necessarily have the risk of defamation at the forefront of their minds but rather, and quite rightly given their roles, how to create a compelling story. The truth may inevitably become more 'colourful' during this process. Whilst the 'justification' or 'truth' defence certainly exists under English law, what is important to note here is that the defence in itself does not prevent an aggrieved individual bringing the claim in the first place and applying for injunctive relief on these grounds. Although the claim may be successfully defended, the consequences of litigation and, potentially, the delays in releasing the film or television programme due to an injunction could be significant. The other issue with relying on the idea that 'if it's true it cannot be defamatory' is that not all sources are reliable. Given that most evidence is anecdotal by nature, it is difficult to ensure the 'real' truth and verify the information or accounts that form the basis for a script and content of a film or television programme.
2. IT IS POSSIBLE TO DEFAME THE DEAD
There exists the notion that 'you cannot defame the dead' and so heirs and estates of a portrayed deceased person do not hold the sufficient standing to bring a claim of defamation on behalf of the deceased in the UK and in many other jurisdictions. The fly in the ointment here is that some jurisdictions such as France and the US are not so forgiving and do have 'post mortem rights of publicity' and so in the event of an international release local counsel should be consulted.
3. DON’T FORGET ABOUT THE RIGHT TO PRIVACY
Another actionable claim an individual might bring is on the ground of an invasion of privacy. In the US, the mere identification of a real person in a film or television programme can lead to threatened or actual legal action for breach of privacy rights. In contrast, the UK does not have a codified regime and privacy law tends to manifest itself as a mixture of EU human rights legislation and the tort of breach of confidence. The Human Rights Act 1998 requires that all UK legislation is interpreted in accordance with the European Convention on Human Rights and the UK courts are also obliged to take into account judgments of the European Court of Human Rights. Article 8 of the Convention provides that everyone has the right to respect for his private and family life, his home and his correspondence. Article 10 provides that everyone has the right to freedom of expression, the exercise of which may be subject to such restrictions as are prescribed by law and are necessary in a democratic society, for various purposes, including the protection of the reputation or rights of others. What faces the courts when presented with an invasion of privacy case is a balancing act of these conflicting priorities and principles. Indeed, a celebrity's decision to be in the public arena (and profit from it) may preclude them from successfully arguing a breach of the right to privacy.
4. CLEAN CHAIN OF TITLE IS A MUST FOR FINANCIERS
One of the most important considerations for financiers looking to invest in content is the existence of errors and omissions insurance cover and this will most probably be a condition precedent to financing. Without evidence of consent from the portrayed individual(s) insurance brokers are unlikely to grant cover or charge a higher premium in light of the risk of claims that may follow. Producers requiring investment for their projects should therefore bear this in mind during the development process and when being asked to provide chain of title documents.
5. DO ENGAGE THE INDIVIDUAL INVOLVED
Whilst the legal benefits of involving the portrayed individual are important to consider, it is also worth noting the practical, commercial benefits to a collaborative approach. Engaging an individual gives the production team access to additional personal information, historical records and interviews, all of which could provide valuable insight on a creative level. There may be information which is not in the public domain or accessible through any medium other than from an individual themselves. Reducing reliance on third parties and getting the primary account directly from its source can help to avoid gaps in a story or information out of context. Having an individual backing a project can also help with marketing and promotion of the content. Any endorsement from an individual should lend credibility to the story and increase the effectiveness of the narrative.
6. GET AN NDA SIGNED QUICKLY
Whilst exclusivity cannot be granted in respect of life rights (as technically they are not rights we own and are able to grant), a producer may be able to persuade an individual to agree not to enter into discussion with other producers. Therefore, whilst there are no guarantees that another film or television programme based on the life story of the individual will not be created (consider the number of recent films based on Steve Jobs), the individual will at least be prevented from engaging directly with competitor producers.
7. CONSIDER ALL SOURCES
Others that permission will need to be obtained from will depend on the scenario in question and whether a producer is deriving the story straight from the source or via a newspaper article, a book, an existing documentary or any other inspiration. If the story is not being derived solely from the source, a producer may need to obtain additional copyright clearances for permission to rely on each of these sources if they are protected by copyright and a "substantial part" of the account contained in the source is being used. Where a story is based on a newspaper article then, depending on what is being used, the consent of the journalists, newspapers and/or photographers may need to be obtained. This is because any photograph, video, written biography or research about an individual will be protected by copyright. Therefore, when using any of these to create content, the rights to the work need to be cleared with the relevant 'creator'. In essence, as long as a producer and writer use their own research to create the screenplay based on publicly available information, the rights may not necessarily need to be obtained despite the fact that the same story has been reported in the news.
8. ENTER INTO AN OPTION AGREEMENT WITH THE SUBJECT
Producers should approach and enter into an option and acquisition agreement with the subject to be portrayed with a right to acquire (either outright or by licence) the rights to their story. Typically producers take an option over the life rights for a certain period of time rather than acquire them outright in order to lower their initial development expenses and 'cushion the blow' if the project fails to attract financial backing. Essentially, an option agreement is a form of cooperation agreement whereby the individual allows the producer to fictionalise their life events for a certain time period in return for a (usually nominal) fee.
9. GET RELEASES SIGNED FROM FAMILY AND FRIENDS
Aside from any book options and consents from third party sources, a producer should also ensure that release forms are signed by friends and family of the subject who are featured in the film or television programme. Where their wider cooperation is required it may be advantageous to enter into a life story agreement with them as well as with the subject. However, it is wise to first check that friends and family are not party to any confidentiality agreements with the subject.
10. ENGAGE SPECIALIST DEFAMATION EXPERTS
Ultimately, the main concern when using an individual's life story for a film or television programme is being faced with a defamation claim from them. Many producers now engage specialist defamation experts to review their screenplays and to see the depictions in context so that the expert can form a view on the level of risk of any claims. It's relatively inexpensive and could be money well spent, particularly if the portrayal is of a controversial or polarising figure.