LEGALLY SPEAKING, IT DEPENDS: Historical Drama Approaches

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

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They say history repeats itself. That's certainly true for films based in the historical drama genre. Why would there be so many stories about the same historical events? Maybe because there are so many ways of telling a story that there's always a fresh take or insight to be explored. Maybe for the same reason we have so many sequels and reboots of already tried and trodden film sources of all natures. It is easier to determine an audience exists for a new story in a world the fans are already comfortable with. Basing a film on a historical event or person should be no different than basing a script on a beloved novel or previous film. But of course, as those who've been reading my columns regularly can guess, it's more complicated because, as always, it depends.

We've covered writing scripts based on real life stories and previously existing sources before in prior columns. There are many pitfalls that writing based on previously existing material, events or people have in common that are covered in those articles. But there are some subtle yet not irrelevant differences that crop up from the different approaches used in creating new historical drama works. That's what this article will delve into and we will use two current historical dramas coming soon to a theater near you as examples to springboard discussions.

History never lies, historians do

“But it didn't happen that way!”

Talk to any producer dealing with historical fiction (and I hope it will be made clear by the end of this article that all filmic historical drama is, by necessity, fiction to a greater or lesser degree,) and there is a discussion they dread the most when dealing with a screenwriter whose work is “based on true events.” It comes when the producer asks the writer for a new draft that changes a few things.

Many screenwriters fall victim to slavishly sticking to the facts. Doesn't seem like such a bad habit when trying to tell a true story, right? But every producer will eventually tell you, “real life is BORING!” The actual way things happened is very seldom the most dramatic or interesting way of telling a story about those events. All story tellers tend to “skip over the boring bits.” And as stories are told again and again certain facts get dropped or “remembered differently” in each new telling. These alterations even have a literary name, dramatic license (though it's not a legal name, even with the term “license” in it, sadly.)

So if your Uncle Joe does it at the family gathering telling his fishing story for the umpteenth time (surely the fish that got away wasn't bigger than the boat) and your producer is asking you to do something similar then what's the harm in doing the same thing in your script? (Do I really need to add my catch phrase here?)

When a film is based on facts or information from existing sources, there is a strong legal desire to adhere closely to those elements as they were or were reported. The farther the retelling varies from the original story the more open to legal recourse the project becomes if someone doesn't like the changes (or more specifically, how the changes reflect on them.) That's why the lawyers who draw up the contracts to get the rights to a story concentrate so much energy and language towards covering as much potential leeway as possible for the filmmaker's flexibility. The more the producers need to alter things to “tell a good story” the more the legal team needs to garner broader rights and admonitions against the sources being able to legally disagree with the creative directions taken.

For example, if a film is to be based on a book or news story the easiest rights to obtain are those to replicate what was in the original. If the telling is true to the facts or true to the reporting of the story then the source has little legal recourse in not liking the end result. But if the filmmakers veered from that path (even in correcting errors in the original reporting) in order to stay true to the dramatic needs of the film then those changes could be objected to by the source material owners because of how it reflects on their own works (unless the contracts prepared for that possibility.) Leaving bits out or telling them slightly differently could lead to the seeking of disassociation from the original material. With a proper contractual structure though, a producer could make a film where the only remaining unaltered material from the original is the title with impunity from the original source owners. (Though, fans of the original material might show their displeasure by not buying tickets. So there's that.)

If the new work is based on real life we can add even more legal worries to the mix. For one example, there are always defamation issues, not only of the subject but also of those around the subject and even of those, borrowing from Monty Python, aptly named “Sir Not Appearing in this Film” types.

Again, properly structured contracts that take into account the various element of what I generally call reputational rights issues can protect the filmmaker. But exactly which of the myriad of types of protections are necessary will depend a lot on how the historical drama filmmaker approaches the retelling.

Case Study A: A historical depiction true(ish) to the person but the events are changed for dramatic effect.

Steve Jobs is the new biographical, stylized film written by Aaron Sorkin and directed by Danny Boyle revolving around three pivotal, backstage moments in the life of Steve Jobs played iconically by Michael Fassbender. During these key brief snapshots in the evolution of the Apple product line the script plays out like a three act play, eloquently and dramatically portraying whole swaths of tense confrontation in the last thirty minutes leading up to the moment Jobs steps on stage for each of three new product launches.

The typical Sorkin-style script is fast paced and loaded with pithy pathos. Real life rarely plays out that way, and this depiction is no exception. The scenes are often invented fictions in timing at least if not complete fabrications for effect. Steve Wozniak himself has said that he never met with Steve Jobs just before any these product introductions and he “never called Steve Jobs an asshole,” as he is portrayed as doing in the film by Seth Rogen.

But it makes great cinema. And Sorkin makes a point by taking creative liberty to concisely depict a mood in time in the life of Jobs by creating cinematic, if somewhat fictional, moments. The end result is a roller coaster ride of emotions and an impressive feat from the filmmakers, but, what kind of legal exposure might be at risk from taking such a tack?

Problems – the depiction of events different from how they actually occurred (if they occurred at all) could color the impression of who the real life people were and how they would have dealt with those events if they actually happened. Luckily Woz seems okay with it, enough to appear on stages with the writer and filmmakers and enjoy the film with the rest of us. Others in other circumstances might not be so cavalier. Contracts are important in keeping these grumbles from growing into problems, but, even a well structured contract can only protect so much leeway.

There is a certain expectation of the semblance of continuity to who the real person really was when granting the right to depict them (or a facsimile of them) in a film. Straying too far away from that expectation could still open the door to a legal strike back in order to set the record straight. It's best to recognize that if you are depicting a real person, there is a reason you've chosen to tell that story and prudence (as well as law) should keep you at least reflecting most of who that person really was in the story being told.

On the other hand, if you are creating a fictional person within real life events...

Case Study B: A historical depiction where the main character is a composite, non-existent one created from many different actual people but the events that happen are true depictions of actual historical events.

Suffragette is the new historical drama directed by Sarah Gavron and written by Abi Morgan that explores a pivotal time in the voting rights for women movement in the United Kingdom circa 1912. In a storytelling form that resonates with the current discourse of empowering women in today's society, the film reflects on the historical struggle of disempowered women fighting to even be heard in their demands for the right to vote. There are many, dramatic, real life events that actually occurred in the time frame of this film and the picture uses the truth of these events to great effect.

In order to tie a dramatic thread between these moments in history, the filmmakers have chosen to create a non-existent character whose life intersects each of these true points in time. Morgan revealed, “I decided that the most interesting approach would be to consider the movement through the eyes of an ordinary uncelebrated woman – of which there were thousands – to explore how someone can be willing to sacrifice everything in pursuit of an ideal.” The character of Maud Watts, brought to life so believably by Carey Mulligan (I foresee awards nominations from her portrayal) is a complete fiction, stitched together from elements of different people's lives who experienced some of the events depicted. The story gives the audience a personal viewpoint unavailable from a more truthful, straight depiction of just the facts.

Where could be the harm in taking such an imaginative, creative choice? Surely, because the character is made up there should be less worry legally, right?

Problems – when the composite is created from snippets out of the lives of real people there is a danger of a false association of elements from the real life of someone impugning the depiction of the actions of them with that of another. Whether this potential false association is either for ill (defamation) or good (false light) the confusion can cause legal dilemmas if not handled well.

And it doesn't necessarily diminish with the passage of time or people. Family names can be held dear and the reputations of long dead relatives have been known to be staunchly protected by their descendants (whose own reputations are in many ways tied to those ancient ones.)

This is one of the reasons there's that odd paragraph invariably at the end of the credit roll of even historical dramas that disclaim “any similarity to persons living or dead is purely coincidental”. It's a legally dubious attempt to head off any mis-associational connections with the real people involved.

Contractually a filmmaker will have to make an assessment of just how far into the family they need to get permissions and life rights granted before proceeding with the film. Those directly depicted of course need to be addressed but also those familial ties that are most associated with the portrayed people and events should be assessed. The more controversial the film is to be, the more you'll likely need to get everyone you can think of to agree ahead of time.

Both of these excellent historical dramas are fine examples of how you approach storytelling in the genre. By taking different tacks in approach, they've masterfully presented their moments in time eloquently. Whether their legal frameworks put in place by their respective, excellent legal teams have been sufficient to protect them from potential distress, time will tell. Because, as always, it depends.

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