Frequently Asked Questions: Releases

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: If a person is writing a screenplay about an event in history, does a person need a release from every living person in order to use his or her name in a story?



Answer: Not necessarily. Unauthorized biographies and films are produced and protected under the First Amendment guarantee of free speech. If the subject is a public figure or public official, you won't be liable for defamation unless you recklessly publish defamatory matter. You will also need to make sure not to reveal any intimate details of subjects' lives that would be considered an invasion of privacy, or borrow more material than allowed as a fair use of any copyrighted material. If you are writing about a private individual, you must be more careful. Prior to production you should submit your screenplay for review by an experienced entertainment attorney to spot any problems. Often potential liability can be avoided by changing character names, locations and adding disclaimers.



Question: When making reference to cars, products (i.e., Toy Story), songs, etc. in your spec script, do you need to obtain the legal rights first?



Answer: You don't need permission to have a character merely mention a product in your script. It is good practice, however, for the producer to obtain a release before that product will be depicted in the film if the product is identifiable to the viewer. If the product is shown in a derogatory light, or if the producer implies that the film is endorsed or produced by the product manufacturer, there could be liability. However, merely showing a product in a film may not violate the rights of the product manufacturer. Likewise, if a character mentions a product name, there may not be any liability. Before you go into production on your script, it is good idea to have an attorney clear it, and look for any potential legal problems. There are often inexpensive ways to avoid liability by adding disclaimers, and slightly rewriting the script so no real live individuals are identifiable. As to products, if there is a problem, you can create a pseudo-product. See my article on movie merchandising for more info: http://www.marklitwak.com/movmerc.html



Question: I am about to attempt to interview for a true story. Problem is, my interview subject is in jail (found guilty for second degree murder). If I am able to get an interview with her, will I need rights to write about her? I've been told that I do not need one. Her sister and brother-in-law are also involved and I'd like to use their characters in the story. Will I need one from them? All other characters I can portray without their true identities. Do you have suggestions on how I might approach getting this interview and if so, what legal ramifications I may face? Can I write a portion of the TV movie from court transcripts and/or newspaper articles without worry?



Answer: Generally speaking, journalists can write about other people without getting any kind of release. You can be sure Mike Wallace on "60 Minutes" and reporters for the New York Times criticize individuals without getting their permission. This is a right that you have under the First Amendment. However, one's freedom of expression is limited in certain realms. You cannot invade another's privacy or defame another and claim the First Amendment as a defense. If this individual is a private individual, not a public figure or public official, you can be liable if you are negligent in publishing something about them that is defamatory or invades their privacy. Therefore, while it is often not required, it is not a bad idea to get a release from the subject that you are interviewing. The release would protect you from any claim based on defamation, invasion of privacy, right of publicity and may in addition grant you certain rights to confidential information like diaries or other information that is otherwise not available to the public. Moreover, obtaining life story rights of the subject might strengthen your bargaining position if you are attempting to use these rights to secure a network television deal. If you fictionalize characters and their identity cannot be determined from the circumstances, then you may not need a release.



Question: Is there an online source for standard legal forms used in the entertainment industry? Specifically, I've been asked to send a standard release (long form) with my script submission. Where can I find such a form?



Answer: I don't know of an online source for entertainment industry contracts. A submission release can be found in my book, Contracts for the Film & Television Industry, published by Silman-James Press. Typically, companies that are willing to accept submissions after a release is signed and they will supply the release.



Question: (1) Someone "gave" me the idea for a screenplay. (I didn't "steal" it—he knows I write screenplays, and he specifically suggested the idea to me as the basis for a screenplay.) If I were to sell a screenplay based on his idea, what is the usual industry standard for what percentage I would pay him for using his idea as the basis for my screenplay? (2) Someone else I know has been trying unsuccessfully to sell a novel he wrote. We have discussed the idea of my trying to turn his story into a screenplay, but he wants to know how we would split the proceeds if it is sold. What is the usual industry standard for splitting the money with the author when a screenplay is adapted from his unsold novel?



Answer: Generally speaking, ideas are as free as the air. You cannot copyright an idea, although clearly ideas can have value. There is no usual industry percentage for the purchase of ideas, since ideas are not bought and traded like a commodity. From the point of view of distributors and studios, an idea is only as valuable as the team that is going to implement it. Steven Spielberg can set up a mediocre idea with a major studio for big bucks, while a fledgling screenwriter with a better idea may have trouble selling it at any price. What is valued in Hollywood is the ability to create a great script or movie, not think-up an idea for one. The most valuable ideas come from people with a proven track record of turning their ideas into successful movies.



As for adapting a novel into a screenplay, it is customary for the screenwriter or producer to take an option on the novel. Assuming this is a relatively unknown work that has been out awhile and no one has sought to turn it into a movie, I would offer the novelist a one year option for $1,000 with one or more rights of renewal for $1,000 each, against a purchase price of $50,000 if it gets made as a television movie, and $100,000 if it gets made as a feature film. After you take the option, you will need to try to set up the finished screenplay with a producer or distributor. The quality and demand for the screenplay will determine what kind of price you can obtain for it. There are other ways you can structure a deal with this novelist. You can agree to split the proceeds from any sale of the screenplay.



Question: I am interested in selling a television show idea and I was wondering what steps I should take to pitch this idea.



Answer: Generally, ideas are not worth a great deal standing alone. There is no market per se for ideas. Steven Spielberg can probably sell a fairly mediocre idea very quickly if he is attached as the writer, director, or producer. On the other hand, your idea could be ten times better, but no one may want to even listen because you don't have Spielberg's track record.



Question: I read an article that talked about the importance of getting permission for the use of items that appear in films. I've heard of product placement but I didn't know it worked the other way around. If characters in a film are all sitting around drinking Budweiser do we have to get Anheuser-Busch's permission to use the bottles? What if stuff just appears in the background, like someone loading up their shopping cart with Cheerios and Pepsi? Do we need releases for that too?



Answer: You don't need to bother with releases if the products are shown fleetingly in the background. But if the products are featured on screen, it is good practice to get a release or have your art dept create a pseudo-product. That being said, it is doubtful whether a manufacturer would have a valid case against a filmmaker simply because the product was shown on screen in a non-derogatory manner. On the other hand, if you show a character drinking a Pepsi and then he falls on the floor sick, you may have disparaged the product and could be liable. Also, if you use the product in a manner that suggests the manufacturer has sponsored or endorsed your film, you can be liable for unfair competition. Keep in mind that many manufacturers are anxious to have their products in films, and they may well give you permission and a bunch of freebies as well.



Question: A few friends and I have recently graduated from law school and are interested in marketing a documentary. We shot this documentary in Daytona last year during Bike Week and think it has some commercial value. I understand that if we loop the footage to music we need to gain the performance rights, but what about releases from individuals on tape? Much of the documentary has close-ups of people who may or may not wanted to be in the film. Naturally, some performed rather unflattering things in retrospect. Is there any invasion of privacy issues here? Everything was taped outside, in public.



Answer: Generally speaking, anything one does in public is fair game in regards to other people photographing it or observing it. You waive your right of privacy when you publicly exhibit yourself to others. The documentary will probably be protected under the First Amendment even if some of the subjects are not happy with their portrayal. When Mike Wallace does a "60 Minutes" investigation, he does not obtain a release from the perpetrators of a scam. However, if you want to use the names or likenesses of people on products or merchandise, or in an entertainment program, you should secure releases.



Question: I am developing a movie script that centers on a company in L.A. during the mid-'60s. This company is still in operation today; however, it is their past that is of interest to me. How do I obtain the movie rights concerning this company? I've been told I have to "buy the rights." I would appreciate your help on this matter.



Answer: You have a First Amendment right to write and make a film about other people or companies without their permission as long as you don't invade their rights of privacy or defame them. When producers buy life story rights from an individual, often what they are buying is their cooperation and their willingness to disclose to the producer information that is not otherwise publicly available. If the movie is going to portray this company in a disparaging manner, then such a release, which would include a waiver of any right to sue you for disparagement is important. Otherwise, you may not need their permission. "60 Minutes" does not need permission of its subjects when it does an expose. But you can be sure that they are careful in documenting that they are presenting the truth. Truth, by the way, is an absolute defense to defamation.



Question: In our screenplay, there is a scene in which a newscaster states that "the ACLU and the National Gay Alliance have released information about a (fictional terrorist organization) ... etc." Do we need permission from each of these organizations to use their names in this context? We would appreciate your comments.



Answer: It is difficult to answer this question without knowing the context in which these organizations are mentioned. Under the First Amendment, you are generally protected in talking about other people and organizations. However, you can be liable for defamation if you defame another and injure their reputation. There are certain defenses to defamation, however, such as truth. After you finish your screenplay, you should have it reviewed by an experienced entertainment attorney to determine if there is any potential liability.Any source