Depicting Real Persons in Screenplays

I had a question recently from a screenwriter client who wanted to know what rights are needed for a screenplay about an historic person. In this case, a celebrity who is dead.

As with most legal issues, to give a reliable answer to this question, an attorney needs to know exactly who is being depicted and the gist of the story being told. After my client gave me the facts, I was able to give guidelines for keeping the script out of litigation.

Knowing that I was able to help someone else doesn’t help you, I realize, but I can share a few general principles for screenwriters and producers dealing with material about real people.

Two main areas to be concerned about are right of publicity and right of privacy.

Right of Publicity

When you’re depicting a real person, especially one who is well-known and makes their living through endorsements and selling artifacts of themselves (such as actors, athletes, writers, and the like), you need to be aware of the right of publicity.

Right of publicity means the right of each living person to control the commercial exploitation of their identity (what some people refer to as their “personal brand”). Obviously, the right isn’t worth much unless you have willing buyers, so the right is generally thought of in connection with celebrities.

Although fewer than half the states have enacted right of publicity laws, the states that have are, not surprisingly, where most celebrities live. Often the laws were created in response to demands by a particular celebrity or their heirs, and the law reflects the desires of that celebrity. Each state’s law is different, which is one reason an attorney needs to know the unique facts of a given situation before giving advice.

Traditionally, the right of publicity was considered a “personal” right, meaning that it belongs to the person and dies with them. However, some states permit the right to be inherited after the person’s death. In California, for example, a celebrity’s heirs can control these rights for 70 years after the celebrity’s death. In Tennessee (where Elvis Presley lived and died), the rights extend for 10 years after death, but if the rights are exploited during that time, the rights can continue in perpetuity as long as the rights are used (you can thank Elvis’s heirs for that).

In California, as well as some other states, the right of publicity descends (that is, may be inherited) for products, merchandise and goods, but does not descend for books, plays, television and movies. Which means generally that, under the laws of those states, writers and filmmakers are free to depict dead celebrities any way they choose.

(NOTE: The law that applies in a given case is the law in the state where that person was legally domiciled at the time of their death–which may or may not be where they died. Marilyn Monroe, for instance, was a legal resident of New York at the time of her death in California. Therefore, New York law–where right of publicity dies with the person–applies to Marilyn Monroe.)

There is a much more expansive discussion of Right of Publicity, including cases decided in several states, in the DVD/book series What Every Filmmaker Needs to Know About the Law.

Right of Privacy

Most of us understand the principle that we have a right to personal privacy. Again, this is a personal right that dies with us; it is not inheritable.

People who place themselves in the public eye give up much of their right of privacy. This applies not only to actors, athletes, writers, and politicians, but also to activists who participate in public debate. So, even living celebrities may be fair game for depiction of events that are publicly known.

What some filmmakers and writers forget, however, is that even though the celebrity they are depicting may be fair game, other people involved in the story of the celebrity’s life may not be. When writing about a person (living or dead), be mindful of not disclosing, unless you have permission, facts that are not publicly known. Especially if they involve other people, you may find yourself on the wrong end of an invasion of privacy suit.

Obtaining Rights

Most writers and filmmakers who intend to depict actual persons in their works will approach the persons depicted to obtain “life rights.” In reality, no one has the right to facts about their life. Facts are not protected by copyright or any other law.

What a “life rights” agreement really gives these writers and filmmakers is (1) an assurance that they can depict the person in a dramatic way without being sued, and (2) access to information they would not otherwise be able to get.

If you are able to get the person (or the deceased person’s heirs) to cooperate and sign a life rights agreement, great! Your work will be easier. Caveat: be sure to have an attorney who knows what he’s doing draft the agreement for you, or at least review it before it’s signed.

For writers who are not able to obtain permission or cooperation, all is not lost. Publicly available factual information may be freely used. A rule of thumb, to be safe, is to confirm any information from at least three independent sources before considering it a fact.

Be wary of using information directly from other written sources. Fact are not protected, but expressions of fact (the ways writers describe a fact) are protected by copyright and other laws. Occasionally, a biographer will fictionalize certain portions of his or her book to amplify the story or to protect third parties. Repeating those fictionalized portions may result in a copyright infringement lawsuit.

Other Considerations

This is, of course, a limited exploration of the types of things to think about when you are depicting real people in your work. For a more in-depth discussion of these topics, see What Every Filmmaker Needs to Know About the Law. Or, consult with an attorney experienced in the legal rights of writers and filmmakers.

© Keith E. Cooper. All rights reserved. You may freely link to this post, but please do not copy (in whole or in part) without permission of the copyright owner.

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2 Responses to “Depicting Real Persons in Screenplays”

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  2. David Tillman says:

    Keith,
    Thank you so much for your latest email blog. I was recently contacted by a man to write a screenplay based on his Uncle who was a notorious LA gangster. I wanted to ask him about the life rights situation and your timely blog has shed some much needed light.

    Cheers,

    David