Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Our client has a story to tell and there has been some interest expressed and indeed an actual offer to purchase movie rights to his story. How can I find out what constitutes a typical arrangement for the sale of movie rights to someone's "true life story"? I need to know more about what is and is not acceptable in the negotiation process, where I can find sample contracts, etc.
Answer: There is a discussion of this topic in my book, Dealmaking in the Film & Television Industry, which discusses life story rights and has some sample contracts. The price for life story rights varies depending on the appeal of the story. For a TV network broadcast movie, it might be $50,000 to several hundred thousand dollars. For feature films, it could be two times or more that amount. If the subject is famous, the figure could be considerably higher. On the other hand, some movies are made about subjects without their permission or authorization. Under the first amendment, one is generally free to write about other people (e.g., an unauthorized biography) without their permission. This also applies to filmmakers.
Question: I've recently written a biographical script about a famous person who recently died. As I understand it I can use his life story without permission because his death means he has no civil rights. But what about the rights of the other people portrayed in my script? Do I need to get their permission before I can proceed or, as long as what I portray is public information (the script is based on a number of books and newspaper articles), do I not need their permission at all?
Answer: The rights of privacy and the right to protect one's reputation are considered personal rights and they expire when the person dies. However, other people that you may want to portray that are alive might be able to sue for invasion of privacy or defamation should you violate their rights. Some of these other characters you might be able to fictionalize, and if they are not identifiable, they might have difficulty proving they had been damaged. A disclaimer that the story is fictional may also give you some protection. Some rights, such as the right of publicity, which may be needed if any merchandising spin-offs are planned, do not expire on death. State law varies on this issue.
Question: What are the legal issues pertaining to writing a screenplay based on someone's life story? What rights need to be secured, etc.? Is it advisable to engage an attorney prior to any discussion about securing rights?
Answer: This is a difficult question to answer because the rights you need to obtain depend upon how much of the life story is in the public domain, and whether the subject of the life story is alive or dead. Moreover, if you fictionalize a story you may be able to avoid buying life story rights. Generally speaking, if you make a movie about someone, you are protected on the First Amendment and do not need a release. However, if you invade their privacy, hurt their reputation, want access to any confidential information that is not publicly available, or infringe upon their right of publicity, you could potentially be sued. Life story rights encompass a release for these causes of action. My book, Dealmaking in the Film and Television Industry, speaks at length about the issues involved in obtaining life story rights and when you need to purchase such rights.
Question: I am currently researching a true story that took place in the '20s. If everyone portrayed in the property is dead, do I need to obtain releases from the deceased's relatives? If a person's estate has been registered with the Secretary of State in California, can I write a true story since it falls more on the information side and less on the commercial side of the spectrum?
Answer: There are many fewer potential legal problems in depicting individuals who are deceased than those who are alive. That is because the rights to sue for defamation, which is harm to one's reputation, and for invasion of privacy, are considered personal rights and they do not descend to one's heirs. Thus, there is less reason to get permission from the heirs.
However, if you want to use the deceased person's name or likeness on merchandising, this is a right that may descend depending upon which state laws apply. Moreover, if you want the estate's cooperation so that it will provide you certain information that's not otherwise publicly available, like diaries, then you have another reason to make a deal with the heirs. See Section 990 of the Civil Code of California for more details on the right of publicity in California in regard to deceased individuals.
Question: Thanks for your continuing insight. My question deals with copyright and "optioning." The main character in a screenplay I'm working on is deceased (as is his wife—the other main character). Many non-fiction books have been written about him (some containing his actual diaries). What information about him—contained within these books—can be considered "historical fact," and therefore exempt from copyright infringement claims? I'm especially curious about the diaries.
Also—one of the books was written by another important character in the screenplay—still living. Should I contact her about "optioning" the motion picture rights to her book (again—non-fiction) or "optioning" the motion picture rights to her story? One more item—when researching this subject, if I interview people about him—do I need to ask them to sign a release of any kind? As you can tell—I'm new to this, and a bit confused. Thanks again. I look forward to reading your answer.
Answer: Historical facts are not copyrightable whether they are incorporated in someone else's work or not. What copyright law protects is the expression of an author - the particular way that an author expresses himself. In other words, ten authors can write biographies about George Washington and each can retain control over their particular approach to the material and how they tell the story, but no one has any monopoly over the underlying facts.
Life story rights, on the other hand, are a different matter. Essentially, the purchaser of life story rights is obtaining a release protecting the buyer of the rights from a suit predicated on defamation, invasion of privacy, right of publicity and sometimes the buyer is obtaining cooperation and access to information that he might not otherwise be able to obtain. When the subject of a life story is deceased, there's much less reason to option life story rights because the rights of defamation and invasion of privacy are personal and do not descend to one's heirs.
In regard to your question about releases from interview subjects, generally speaking, journalists do not need to get such a release unless they need to acquire life story rights or a depiction release. However, it never hurts to have a release, and if you can do so without cost, it's not a bad idea.
Question: I am interested in writing a screenplay based on a friend's life story. I am having some trouble getting him to sign over the rights. One condition is that he wants to remain anonymous. How does a studio know a story is based on real events if the subject wishes to remain anonymous? Are there any books that explain the process of obtaining life story rights? Secondly, must I obtain permission or rights from everyone I will use in the story, mainly his father and mother? Any information you could give me on this would be greatly appreciated.
Answer: The studio may not care whether or not the real name of the individual is used. It will probably depend upon whether his name will help attract an audience to the picture. For instance, a studio wanting to do the Amy Fisher story will want to use her real name because that is what will attract an audience. On the other hand, although the events in your friend's life are interesting, and the studio wants to say that it is based on a true story, his name may be not known to the public, and therefore the use of his name may not be important. As far as the studio knowing it is a true story—this can be disclosed to the studio even though it is not necessarily disclosed to the public. The character in the story can have a fictional name, and you could change the circumstances enough so that your friend will not be identifiable from the context.
There is a section in my book, Dealmaking in the Film & Television Industry, that covers the process of obtaining life story rights. These are usually obtained on an Option/Purchase basis or a grant with a reversion clause. As far as obtaining permission from other people in the film, this is not always required. Certainly, if they are minor characters and you fictionalize them, you can probably avoid purchasing their life story rights. It should also be noted that if the person has done something newsworthy, you might have a right under the First Amendment to depict them without a release.
Question: You've touched on the subject of writing someone's life story a few times, but I haven't seen this exact wrinkle addressed: I want to write a screenplay on an incident of the 1920's. All the characters are deceased, which makes things easier. I've been researching various biographies and news clippings, but my question comes specifically with the use of the diaries and letters of these historical figures. My interest in being historically accurate seems to conflict with copyright issues. If I use their phrases and quotes, I'm violating copyright, and if I use my words in their mouths, I'm sacrificing accuracy. Are diaries a special case? Are they more in the realm of 'historical fact'? As you can see, I'm confused. By the way, the diaries that I refer to are of two kinds: one is published (as memoirs) and the rest are unpublished (residing in various museums or libraries). I have a similar question with regard to personal letters. Your thoughts are appreciated.
Answer: Diaries are no different from other copyrightable matter. Copyright can attach to both published and unpublished works. Under the old copyright law in effect before 1976, if one chose to publish one's work, and did not include a copyright notice, then the copyright might be lost. Since the characters are deceased, you do not have to worry about being sued for invasion of privacy or defamation. In some states, the right of publicity descends to one's heirs. In other states, it does not. If it descends, you may encounter some problems as far as spinning off merchandise from a film. However, you would be protected under the First Amendment as far as making the film about real-life individuals without a release. Relying upon the content and information in the diaries would not be copyright infringement. Facts, historical incidents, ideas, themes, and names are not copyrightable. However, if you start extensively quoting from the diaries (assuming the diaries are still protected under copyright law), that could be an infringement of the copyright owner's rights. Copyright is descendible and the heirs to the copyright owner can inherit the copyright. Before 1976, a copyright would last for 28 years, and then could be renewed for an additional 28 years. When the law was changed, an additional period of 19 years was added. Thus, it is likely that any work created more than 75 years ago is now in the public domain. If the copyright was not renewed, then the copyright could have expired earlier. You will have to determine when the copyright came into existence.
Question: If I sell my story and later decide I want to write another story that includes one or more of the characters from my first story, would I have to negotiate into the contract the rights to do so? For example, I write a script, it is made into a movie and then five years later I decide to write another script, or maybe a book, which deals with one of the supporting characters from that first script. Would I have to have contracted at the time of sale to keep the rights to the characters?
ANSWER: If you reserved author written sequel rights, you may be able to use the characters in a subsequent work. You need to carefully review the language in your agreement to determine what your rights are.
If you sold the entire copyright to your script, then the new owner now has all rights to it, until such time as it goes into the public domain. Those rights include the use of the characters in the work to the extent that characters are copyrightable. Finely drawn characters, especially those with a visual component such as a comic book character, can be protected under copyright law. Likewise, characters with a name, such as "James Bond" might be protectable under the laws of unfair competition. But general character and personality traits, such as a "hard-boiled private eye," are not copyrightable, and freely available for all writers to use. There are dozens of hard-boiled private eye characters created by different authors. So even if your character is now owned by another, you could create a new and different character that might share some of the same personality characteristics of your prior character.
When writers create an original script on their own (i.e., not as a work for hire for another), they often are able to reserve certain rights to their scripts when they sell the motion picture rights. These reserved rights often include dramatic, radio, live television, print publication and author written sequel rights. Moreover, if you had a reversion clause in your purchase agreement, it might provide that if the buyer does not produce a movie based on your script within a certain time (i.e., five years), all rights revert to you. Finally, if a writer is a member of the Writers Guild, he/she may be entitled to certain "separated rights" by virtue of the collective bargaining agreement between the guild and its signatory companies.Any source
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