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This article was first published in Issue 6 of Entertainment Law Review
The "Real Life"
Switching on the television today and finding something to watch is a very different experience to the way it once was. You only have to browse through the EPG to reach the conclusion that it has become increasingly difficult to find programming which is not in some way "reality tv" based. With the global success of Big Brother in the late 1990s the reality television phenomenon exploded and is now a regular fixture of television programming. Alongside this, the population's natural curiosity of other people's lives also manifested itself in another form: demand for more television and films based on real life stories.
Producers worldwide rejoiced as this trend emerged. There was no shortage of interesting and original life stories to exploit spanning every genre – from historical figures to sporting legends to screen sirens to the extraordinary event to change the life of a small town's 'average joe'. "The Iron Lady", "Argo", "The Queen", "Untouchable", "My Week With Marilyn", "The Social Network" and "The Impossible" are just a handful of examples from a long list of successful film titles based on life stories. The benefit of creating content based on true life events is simple – the story in each case is already written, which in itself results in considerable cost benefits. The main task for producers is to figure out how to develop the story into a programme or feature length film.
The objective of this article is to explore the concept of "life story rights" and provide an overview of the challenges facing film or television programme makers (which, for the sake of ease, I will collectively refer to as 'producers' from this point on) looking to create content on the basis of an individual's life story. Whilst undoubtedly one of the main concerns a producer has is how creatively to adapt the narrative aspects of a person's life story so that it translates into compelling viewing, getting to grips with the legalities is of equal importance.
Hey it's my story!
The first myth to bust is the one which professes that we own the rights to our own life stories. There is simply no legal basis in English law for asserting this in copyright, trade mark or any part of intellectual property law. Provided that information has been obtained lawfully, there is technically nothing to prevent a producer making a film or a programme based on my life or yours. It is this fact which has allowed celebrity based programmes such as E! True Hollywood Story or indeed the unauthorised biography to exist. It is not the potential infringement of an intellectual property right which producers should be concerned about but the associated risks that arise with the public portrayal of an individual.
What's the risk?
There are a number of risks facing producers who portray individuals in their content, the main one being the risk of being sued for defamation. Whilst there is no definition of what constitutes a 'defamatory statement' under the Defamation Act 1996, the general stance is that it is an allegation that tends to make reasonable people think the worse of the claimant. In a claim of this nature the victim has to show that the statement was made to a third party and that it has the effect of harming his or her reputation. A producer will often rely on the assumption that they are safe from a defamation claim on the basis that the depiction is true. However, there are inherent risks in this approach given that the portrayal of any individual is a subjective exercise in itself. 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 the victim bringing the claim in the first place and applying for injunctive relief on these grounds. An injunction preventing exploitation of the film or television programme could be extremely detrimental to its performance and not a risk that should be taken without good reason. The other issue with relying on the statement 'if its true it cannot be defamatory' is that not all sources are reliable and given that most evidence is anecdotal by nature, it is difficult to ensure the 'real' truth. Given that under current law the onus is on the producer to prove a statement is true rather than the victim having the prove it is false the issues associated with verifying information need to be considered at the outset. The degree of risk of defamation should not therefore be underestimated.
The silver lining on this cloud for producers is the notion that 'you cannot defame the dead' and so heirs and estates of a portrayed deceased person would not hold the sufficient standing to bring a claim on these grounds in the UK and in many other jurisdictions. This has prompted a deluge of films and television programmes in recent years, including most recently the cinematic Oscar winning portrayal of Abraham Lincoln by Fox and ITV's current television series Mr Selfridge. The fly in the ointment here is that some jurisdictions 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[1].
Another actionable claim an individual might bring is on the ground of an invasion of privacy. Whilst in the US the mere identification of a real person can lead to threatened or actual legal action for breach of rights of privacy, the UK does not have a codified regime and 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 may preclude them from successfully arguing a right to privacy, as Elizabeth Taylor found in 1994 when she was unable to stop NBC's docudrama based on an unauthorised television biography of her life. In the case of celebrity portrayal, image and personality rights are both issues that need to be considered by producers but discussion of these is outside the scope of this article.
One of the most important relevant 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 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.
Overcoming obstacles
It is generally considered good practice to obtain permission from the individual in question for a number of reasons. Firstly and most importantly from a legal perspective to avoid any potential defamation or invasion of privacy claims which, as discussed, may potentially be actionable under English law (and under the laws of other jurisdictions) and may affect E&O insurance cover eligibility. The second advantage of this approach is that it engages the individual involved and gives the production team access to additional personal information, historical records and interviews, all of which could provide valuable insight on a creative level. Thirdly, whilst exclusivity cannot be granted in respect of life rights, a producer may be able to persuade an individual to agree not to enter into discussion with other producers. Whilst some producers may be adverse to the idea of spending money to enter into life story rights agreements, others can see the way in which the advantages outweigh the disadvantages.
Steven Spielberg's production company DreamWorks SKG chose to adopt the reduced-risk approach with the romantic comedy "The Terminal". Merhan Karimi Nasseri is the living individual upon which Tom Hank's character is based. Whilst Mr Nasseri has lived in Terminal 1 of Roissy-Charles de Gaulle International Airport for 16 years, the production used JFK airport as the location for their story. Mr. Nasseri entered into a contract with DreamWorks SKG several years ago after receiving a call from them in 1999 offering to buy the rights to his story. Neither DreamWorks nor his lawyer will say how much it was for but in any event the film was released without any fear or risk of prosecution for defamation by Mr Nasseri.
Who else to get permission from?
Who to obtain permission from will depend on the scenario in question and whether the producer is deriving the story straight from the source or via a newspaper article, a book, an existing documentary or any other inspiration. It is quite often the case that a producer is not the first to tell a particular story and may be relying on another source as a basis for their own content. If this is the case, a producer may need to obtain additional copyright clearance for permission to rely on each of these sources if the other account is protected by copyright and a "substantial part" of that account is being used.
Where the story is based on a newspaper article then, depending on what is being used, the consent of the journalist[2], the newspaper itself and/or the photographer will need to be obtained. This is because any photograph, video, written biography or research about an individual is protected by copyright and 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 the producer and the 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 the same story has been reported in the news.
Where the story is based on a book the producer will need to enter into a book option with the author and/or publisher to clear the rights in the work and negate any copyright infringement claims. In 2011 in the case of Paul Hodgson and another v Andrew Isaac and another[3] a county court ruled that the defendant's film script which told the story of the claimant's life had infringed the copyright in the claimant's autobiography. The judge found that elements reproduced in the script were not simply a generic story about a disabled football fan but constituted a substantial part of the story told in the book and were not based purely on conversations the defendant had with the claimant.
In a remake heavy market increasingly documentaries are being viewed as development material for producers looking for interesting sources to make feature film and television adaptations. Of course producers are under no obligation to enter into negotiations with documentary producers simply by telling a story based on the same events of a person's life. However where the story is going to be told largely in the same way as the documentary, the consent of the documentary's producers will also need to be obtained to avoid copyright claims. Doing this has the added advantage of being able to piggy back the success and promotion of the documentary.
An interesting illustration of the variety of ways a life story can be exploited can be demonstrated by the content being produced in respect of the life story of the late co-founder of Apple, Steve Jobs. Last year Sony Pictures acquired the rights to the authorised biography of Steve Jobs written by former Time Magazine managing editor Walter Isaacson for a seven-figure sum. The book is based on more than 40 interviews with numerous family members, friends, foes, competitors and colleagues over a 2 year period. Isaacson was reportedly given unfettered access to Jobs, including a personal tour of his childhood home. However this isn't the only biopic to be released in the near future about the Apple founder. Oscar-winner Aaron Sorkin has also revealed plans to take a unique "real-time" approach to his biopic script by writing just three scenes for the film, each set backstage immediately before a product launch. By contrast to Sony's approach to the depiction, rather than depend on Isaacson's book, Mr Sorkin is basing his screenplay treatment on his own research. Sorkin said in a video posted online by The Daily Best news site "I'm meeting with all the people in Steve's life now, from Apple co-founder Wozniak to all the people who were around for the Macintosh." This approach means that from a legal perspective Sorkin need only obtain releases from those living people he features and, depending on whether post-mortem defamation claims are actionable in the relevant jurisdictions, potentially obtain the cooperation of Job's family without any necessity to fork out for any expensive option costs. The existence of yet a third film in the pipeline on Mr Job's life starring Ashton Kutcher shows that in the case of life story depictions, there's certainly more than one way to flog a dead horse.
Let's Get Down To It
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 license) 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 be financed. Essentially the option agreement is a form of cooperation agreement whereby the individual allows the producer to fictionalise their life events in return for a (most usually nominal) fee. They can sometimes also agree to help promotion of the content and even consult with producers. Assessing the price to pay for these rights depends on an assessment of various risk factors including the negativity of the intended portrayal, who the individual is and what factual information the producer has already obtained through their own research.
Aside from any book options and consents from third party sources, release forms should also be signed by friends and family who are featured. Where their wider cooperation is required it may be advantageous to enter into a life story agreement with them as well as the subject. It would also be prudent to ensure that the third party sources are not party to any confidentiality agreements with the subject.
Ultimately the main concern when using an individual's life story for a film is a defamation claim from them. Many producers now engage specialist defamation experts to review their screenplays and see the depictions in context to form a view of the level of risk of any claims. We have certainly arranged this for risk-savvy clients whose screenplays feature any living individuals. The risk will no doubt vary from production to production.
Conclusion
Producers should always assess the legal landscape before embarking on any project they are planning and where making a film or television programme based on someone's life story, given the UK's array of developing defamation and privacy laws, the advice is to tread carefully. As discussed the price can be high for producers who continue their projects without assessing the risks and obtaining consent where needed.
Melissa Fish, Associate, Media and Entertainment
[1] This article focuses only on the position in England. Examples of less friendly life story regimes include those in France and the US. Producers planning international release of their content should therefore seek specialist legal advice in those territories.
[2] A journalist of a newspaper article will be deemed to be an author for these purposes as illustrated by the case of Donoghue v Allied Newspapers Ltd [1938] Ch 106, [1937] 3 All ER 503 whereby a journalist wrote a life story on facts supplied by an individual.
