Any contract for Life Rights boils down at its core to an agreement not to sue. Entertainment Attorney Christopher Schiller takes you through the in's and out's.
Fact or fiction, there's something that pervades all screenwriting and cannot be avoided. The story nearly always revolves around a “someone” and that someone (or someone who just thinks they are that someone) might care about what's said about them. Herein lies the murky waters of so called “Life Rights.”
We've touched on this topic on several occasions in prior articles on newsworthy events, historical depictions and such. Whether you are writing a biographically based work or creating what you believe to be pure fictional characters “loosely based” on an amalgam of people you know or have studied, you will likely run across someone who has a keen interest in how the portrayal comes across. Even if there is no basis for a complaint, the prudent path is to send in the lawyers to gather what the industry terms “Life Rights” in order to keep the production process uninterrupted by squabbles or competition. Simple concept, but, the details... ah, the details.
What are “Life Rights”?
Simply put, any contract for Life Rights boils down at its core to an agreement not to sue. A savvy lawyer will include an impetus to discourage others from pursuing the same story (e.g. exclusivity). They might even put in a good will clause preventing the signee (and if smart, as many as can be associated with or controlled by them) from badmouthing or interfering in the production in any way. It could be a simple document with just the big potentials covered, or attempt to wrap up the signee in every avenue of possible recourse. Armed with enough signed Life Rights a production should be able to proceed knowing that no one else can tell the story they're attempting and no matter how they tell it, there will be no one out there saying, “But it didn't happen like that!”
But how do you know you have “enough” coverage? Typically a production tries to get Life Rights of the directly involved subjects. If prudent heads are involved, you'll attempt to get the same from the directly related or involved parties to make sure that the side stories and color added to the telling doesn't impact their lives without their permission. Going far enough afield to feel covered is not a science and costs money and time at each step. How far do you go? There's always potential a second cousin once removed who might take offense to an offhand remark that casts aspersions on her impeccable character. Murky indeed.
What Rights Are At Issue?
Hopefully, if you've been reading my columns for a while, you realize that no one has a copyright to their life. That is an economic right available to protect expressions, not the reflections of a life contained in those expressions. Without forms of protection that can speak to the life of a person itself, we would be unable to control how society views us. But there are rights of protection available in areas of international and domestic law that attempt this. These include: Droit Moral (see sidebar), Right to Privacy, Rights of Publicity, Endorsement, Defamation (libel, slander) and a host of lesser, but, no less important possible actions. I have come up with my own term that encompasses all of these rights to differentiate them and avoid some of the legal baggage other terms have that just confuses the issue. I call these “Reputational Rights.”
Droit Moral – Moral Right - enjoyed by nearly all the rest of the world and apparently unattainable by any US citizen. Or so some would like you to think.Outside of the U.S. creators have statutory rights that are separate from their economic rights (e.g. copyrights) These vary from country to country but can include:Rights of Paternity (I like the term Rights of Appellation)
- - Right to be named in association with the work
- - Right to not be named in association with the work
- - Right not to be misnamed
Rights of Integrity
- - Against destruction
- - Against distortion (additions, alterations, amendments, deletions)
Right of Disclosure
Right of Withdrawal
Right to Access & Amendment/Alteration
The U.S. doesn't have many statutes that cover Moral Rights (e.g. VARA) but courts have stated that they are available through contract rights and already standing laws. I will cover Moral Rights much more in depth in a future article.
Reputational Rights do not protect purely economic interests as copyrights do and cannot be compensated for by calculating and replacing the monetary loss incurred. What is the price tag for a reputation? What if a story is told that an individual in World War II Germany took to prostitution in order for her to survive? What if this story was powerfully told in a film but wholly untrue (a defamation in legal terms)? What recourse could the survivor and her family take to keep that false story from getting out? Or even if the story was true it would still be damaging to her reputation among those who hadn't known. If the telling isn't pertinent to the film's story line it could violate the victim's right against public exposure of private facts, another legal theory.
Every story that deals with people has the potential of causing reputational harm to someone. The courts have recognized that paying money after the fact does little to repair the irreparable damage and so empower these protections with the severest restriction they can, the injunction. An injunction is an especially threatening recourse to a film project because of the amount of money tied to a timeline in the film process. An injunction is a court order to halt, stop, prevent or disallow something that, if allowed to continue, could do irreparable harm. You can imagine with a timely injunction coming just before a film is set to release the effects would be devastating to the film's success or even existence. This is fantastic for those whose reputation needs to be protected, but, it is also available to those with less pure motives and no real case to likely win in the end. A smartly timed threat of temporary injunction could loom over the producers as a huge economic loss, and they'd pay anything to avoid it.
Knowing this, Life Rights were invented to prevent as many of those with potential grounds to sue to, in advance, agree not to. They are usually exchanged for a tidy sum of money (less than it would cost to stop an injunction later), enough to keep everyone happy and the production moving forward.
Not a Perfect Tool
Life Rights contracts are not perfect. They tend to evolve as do most contracts in the industry, following trends as they occur. And changing when someone finds a flaw in the latest wording. I recall the scurry of redrafting that happened after someone who had signed an iron clad Life Rights contract still sued the production and won. It was granted that the production had judiciously claimed every right to portraying this person's image, and all acts that he had or hadn't committed in the telling of the story. It seemed that any portrayal of this person in any form was protected from suit. What they hadn't foreseen, nor accounted for in the contract, was the potential of writing that person out of the story altogether. They hadn't added language to prevent suit in case the life “wasn't” portrayed.
Live and learn. And include it in the contract. (And cross your fingers, because, it depends...)
- More Legally Speaking, It Depends by Christopher Schiller
- Legally Speaking, It Depends: Ripped from the Headlines
- Legally Speaking, It Depends: Are Ideas Free to Steal?
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