Or Could that be “Ripped Off” from the Headlines?
It is usually not a question whether a sensational story that captures the public's attention through news reports would make a great script. The question should be, “What are the legal issues you have to be aware of to turn that story into a script that has a chance of being made without being hopelessly embroiled in a legal tussle?” And it is not a simple question to answer, because, you guessed it, IT DEPENDS. There's no way this article can cover all the aspects involved, but, we can attempt a superficial overview of some of the highlights.
First let's start with the basics. Usually, if we're lucky, news stories are based upon facts. Facts are NOT copyrightable – opinion and expression are. Contrary to popular opinion, newspapers don't own the news. (Unless they make it up, their published fiction is theirs to license, but, that's another article.) They just own their particular take on the reporting of it. (We'll get back to this.)
Take this sample, short news story from a police incident blotter:
“Citizen Jim Brown was struck by a car today at 10:30am while jaywalking across Morgan Street. He is reported in stable condition at Our Lady of Hope Hospital.”
If all of these pieces of information are truthful facts, then there is not much expression in the story that can be protected by copyright. Can a writer take these facts and put them in a script? As far as the facts go, yes, though it wouldn't be a very interesting movie. Suppose, though, the writer decided it was a great starting point for a story, say where the movie version of Jim Brown learns from this incident that he has superhuman healing ability and becomes a superhero? Can that story be told, maybe even stating that it is “based on true events” without legal issues? Again, it depends.
First of all, you always have to keep in mind that big newspapers and magazines have deep pockets and can tie up even legitimate alternative tellings of stories if they so desire. So tread carefully, or be prudent and ask for permissions, even if they might not be necessary. It'll save headache when it comes time to sell your wares. But the news sources aren't the only rights you need to worry about.
Let's look at just one aspect of our hypothetical, fictional script: the main character. If the story told is very fanciful and no one could mistake the fictionalization for actual events of the real Jim Brown, then it MIGHT be okay. It all depends on what effect can be traced back to the real person. We're getting into the legal area of reputation protection, and there are lots of legal paths that must be walked properly to get through that mine field.
Right of Privacy, Right of Publicity and Newsworthiness
Right of Privacy, simply put, aims to protect an individual's reputation from unwarranted damage. It is not, as some might wish for, a shield to protect from all prying eyes. Rather it is a deterrent to those who would pry too far. This right is often confused with the similarly, but, distinctively different protection of a Right of Publicity which includes protection of a famous person's ability to market their image commercially as well. But those rights are dampened when the one to be protected does something that removes their privacy or choice from the equation. Like becoming newsworthy. Someone who gains notoriety enough to pique public interest has lost some of the right to keep personal details out of the news or pubic eye (the public eye is where the movies come in). That newsworthiness can be by their own hands or be thrust upon them, but, if the attention has legitimate public interest, a true report cannot be silenced.
So if our Citizen Jim Brown actually did step into traffic and get hit by a car, then the newspaper can report it and a movie can be made about it because it is a newsworthy event. But anything outside of just the facts of the event can open up potential legal tensions again. And what if the facts are wrong?
31 Flavors of Defamation
“You cast aspersions on my good character, you cad.”
Okay, so there may not be that many variations of defamation but there are quite a few, despite courts continually attempting to lump a lot of them together or make some disappear altogether. Simply put, (and therefore wildly inadequate as a definition) defamation is the damaging of one's character by the public expression of usually false factual claims. Defamation is the general category that covers a broad family of offenses, any of which can cause a careless writer great bother.
Libel and its lesser, gossipy cousin slander – The traditional forms of defamation are libel, when the defamatory statements are written or published, and slander where the damage is conveyed only by speech. The distinction between these used to be important because the spoken word had less carriage, and permanence and therefore less of an audience and impact. That was before radio, television and movies, though. Now, most jurisdictions consider them equally and count the actual impact to the person's reputation by the size of the audience however they came to hear the defamation. There is a key element that is required for there to be defamation in this sense (at least according to most jurisdictions) and that is that the statement must be FALSE and that falsity leads to the lowering of reputation within the community.
If Citizen Jim Brown wasn't actually jaywalking when he was hit but was reported as such and the film portrayed him as so cavalier when it comes to obeying the law, his actual reputation could be damaged by groups that highly praise a law abiding citizen. Even if the filmmaker was just repeating what was reported, they would still be held accountable for the libel.
Where this gets difficult for a filmmaker is when the film gets creative and invents events and deeds that may not have actually happened but make a good story. If there can be an association of the character in the film back to a real life person and the reputation of that person can be shown to have been harmed by the portrayal because some of the audience are swayed to think the falsehoods are actually talking about the person and not inventions of the filmmakers, defamation can be prosecuted. And it would take a Perfect Storm of a defense to get out from under those accusations. (There's a hint there if you want to look up a lawsuit that steered this course.)
And telling the truth is not always going to save you from trouble. There is a lesser known but 'truly' thorny area of law called Public Disclosure of Private Facts. This comes up when facts about a person's life are exposed to the public but they are non-newsworthy. Even if the facts disclosed are absolutely true, an individual has the right to keep private facts private. A modern example of this would be the disclosure that an individual is homosexual, which thank goodness is not as defamatory a statement as it historically was considered in the past. It is also more and more rarely newsworthy. It is still a private fact and should be left to the discretion of the individual as to its disclosure.
There is also False Light, a situation where the false or misleading statement doesn't lead to a loss of reputation-- could even lead to a gain-- but should not be allowed anyway as a matter of public justice.
All these legal schemes focus on reputation. You've got to have one to damage it. There are certain individuals who are deemed “defamation proof” meaning they are held in such low esteem that no story told about them could damage their reputation any further.
'Life Rights' the fiction that protects (usually)
The way most legal teams try to protect a production from these minefields is by acquiring something that really doesn't exist from every person who might be included in the story being told. Life Rights are actually a contract not to sue, and whose terms establish that a person who might be a subject of the film being made agrees that certain liberties might be taken, certain facts about their life might be revealed, and that for an exchange of consideration (read: money), they waive their right to sue about anything that is portrayed about them (or not) in the movie. This is usually sufficient to protect the project enough to move forward.
And it is also prudent to consider distancing the characters portrayed as far as possible from the real people so as to lessen the opportunity of confusing the portrayal with any real persons. Change the names to protect the innocent (read: the writer.)
- More Legally Speaking, It Depends by Chris Schiller
- Legally Speaking, It Depends: Ideas Are Free to Steal?
- Primetime: The Truth About Protecting Your Work
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