Purchasing
Life Story Rights
By
Mark Litwak
Before
you decide to purchase the rights to a person’s life story, it is worth
considering what you are buying. When you buy the rights to portray
someone in film or television, you are buying a bundle of rights. These
rights include protection from suits based on defamation, invasion of
privacy and the right to publicity. You may also be buying the
cooperation of the subject and his family or heirs. Perhaps you want
access to diaries and letters that are not otherwise available to you.
If the subject of the
life story is deceased, much of the rationale for buying these rights
disappears, since defamation and invasion of privacy actions protect
personal rights that do not descend to the estate. In other words,
people can spread lies and falsehoods about the dead, reveal their
innermost secrets, and their heirs cannot sue for defamation or
invasion of privacy on behalf of the deceased person. A writer could
publish a revisionist history of George Washington, portraying our
first President as a child molester and a thief, and his heirs would
have no remedy. So when a subject is deceased, a producer has less need
for a depiction release. The right of publicity may or may not descend
to one’s heirs, depending on state law.
It is also important
to consider whether the subject of your film is a private individual or
a public official or public figure. Public officials and figures have
opened more of their lives to public scrutiny, and consequently more of
their lives can be portrayed without invading their privacy. Moreover,
public officials and figures must meet a much higher burden of proof in
order to establish defamation or invasion of privacy. They must prove
that a defamer intentionally spread a falsehood or acted with reckless
disregard of the truth.
One should also
consider the possibility of fictionalizing a true story. If you change
the names of the individuals involved, change the location and make
other alterations so that the real-life people are not recognizable to
the public, you could avoid the necessity of a depiction release.
Keep in mind, however,
that the story’s appeal may be predicated on the fact that it is a true
story. In such a case, fictionalization is not a good alternative.
Suppose you wanted to do the Jessica McClure story, describing how a Texas community
rallied to the rescue of a young girl who fell down a well-hole. Here
you would want to bill the movie as The Jessica McClure Story. That is
why viewers would tune in.
Terms of the Agreement
In
negotiating for life-story rights, there are a number of important
issues that need to be resolved. At the outset, the parties must
determine the extent of the rights granted. Does the grant include
remakes, sequels, television series, merchandising, novelization,
live-stage rights and radio rights? Are the rights worldwide? Buyers
will usually want as broad a grant as possible. The seller may insist
on retaining certain rights.
The buyer must also
consider other releases that may be needed. What about the subject’s
spouse, children, friends and relatives? Will these people consent to
be portrayed? Will the subject ask his friends and relatives to
cooperate? Can these secondary characters be fictionalized? If the
producer is planning an ensemble piece about a basketball team, it
makes no sense to sign up players one by one, hoping to get them all. A
smart producer will gather the team in a room and purchase all of the
rights or none.
Another issue is
whether the rights can be assigned to a studio or production company.
If the buyer is a producer, she will often need to assign such rights
to a studio or network later as part of a financing/distribution
agreement.
The purchase of
life-story rights can be structured as either an option/purchase deal
or as an outright sale, often with a reversion clause. A reversion
clause provides that in the event the rights are not exploited within a
certain number of years (i.e., the movie is not made), then all rights
would revert to the subject. This provision protects the subject if he
has sold rights to his life story to a producer who never uses them,
and some time later another producer is interested in making such a
film.
The agreement should
recite the consideration exchanged. Consideration is a legal term of
art. Consideration is that which is given in exchange for a benefit
received. It is a necessary element for the existence of a contract. A
contract is only binding with consideration. It is what distinguishes a
contract from a gift, which may be revocable.
Consideration is
usually money, but it can be anything of value. As a general principle,
courts do not review the adequacy of consideration. In other words,
should you be foolish enough to agree to sell your brand-new car, worth
$15,000, for only $5,000, don’t expect a judge to rescue you from the
results of your poor judgment. Unless there was some sort of fraud or duress
involved, the contract will be enforced, although it may be unfair to
one party.
To ensure that a
contract is binding, agreements often recite: “For ten dollars and
other valuable consideration.” This clause establishes that there has
been an exchange of value, even if it is nominal consideration. Make
sure the consideration is actually paid. It is wise to pay by check so
that you will have the cancelled check as proof of payment.
Mutually exchanged
promises can be adequate consideration. For example, a producer’s
efforts to develop a project could be deemed adequate consideration for
an option. But to be sure their contracts are enforceable; producers
may want to pay some money for the option. There are some exceptional
circumstances when courts will throw out a contract if the terms of the
contract are unconscionable.
There are other ways
to compensate a subject of a life story besides a flat fixed fee. You
could give the subject points (percentage of net profits), consulting
fees and/or bonuses to be paid when the film is exploited in ancillary
markets.
An important part of
any depiction agreement is the “Warranties and Representations” clause.
A warranty is a promise. The buyer will want the seller to promise
never to sue for an invasion of his rights of publicity and privacy, or
for defamation, even if the buyer takes some creative liberties in
telling the story. The warranties must cover all conceivable
situations. No one wants to buy a lawsuit.
There will also be a
provision that gives the buyer the right to embellish, fictionalize,
dramatize and adapt the life story in any way he chooses. This is a
frequent sticking point in negotiations. The subject is delighted to be
asked to have her story told on the silver screen, but when you present
her with a depiction release, she becomes concerned. She asks, “This
document says you can change my story any way you like and I can’t sue
for defamation. How do I know you won’t portray me as a monster?”
A producer may reply:
“Trust me, trust me.” Sometimes that will work. But the subject may
respond: “I have no intention of trusting any of you charming Hollywood types. I want script approval. Write
your script, and if I like it, I’ll sign the release.”
Can a producer give a
subject script approval? No sane producer would. No producer is going
to expend a lot of time and money developing a script only to find that
the subject has changed her mind or is unreasonably withholding
approval.
If the subject refuses
to give the producer carte blanche, are any compromises possible? Yes.
The subject could have approval over the treatment or selection of the
writer. Perhaps the subject will figure that if she approves only a
classy writer, her portrayal will be acceptable.
Alternatively, the
producer could offer to make the subject a creative or technical
consultant to the production. “You’ll be right there by the director’s
side,” says the producer, “giving him advice and suggestions to ensure
that everything is authentic.” The producer may not mention that the
director doesn’t want the subject on the set and is not required to
accept her suggestions.
Another possible
compromise could limit the subject matter and period portrayed. Perhaps
the subject is primarily concerned that an embarrassing incident in her
life not be re-enacted in Panavision. The release could say that
certain incidents (e.g., a divorce) are not included in the release. Or
the release could cover limited periods of the subject’s life (e.g.,
only those incidents that occurred before 1947).
Finally, the subject
might have the right to determine screen notice. She could decide if
the film will be billed as a true story or a dramatized account.
Alternatively, she could decide whether real names are used for the
characters.
Excerpt from Dealmaking
in the Film and Television Industry, 3rd Edition, by
Mark Litwak.
