When and why is it necessary to obtain someone’s “life rights” when embarking on a non-fiction project? Here, Reavis Parent Lehrer’s Nicole Page shines some light on the subject.
In order to obtain access to and cooperation from subjects as well as to avoid lawsuits alleging defamation, misappropriation of likeness, infliction of emotional distress or other claims, it is sometimes necessary to secure “life rights” agreements, particularly if the life of one particular subject is central to the film. While factual information isn’t copyrightable, fiction and non-fiction filmmakers will likely need to contemplate at some point in their careers whether or not securing life rights is essential to a particular project. Life story rights agreements allow filmmakers to portray and editorialize an individual’s life story. But as you’ll see here, several factors determine whether such an agreement is necessary.
Public (or Semi-Public) vs. Private
A suit brought by the former manager of N.W.A., who maintained he was depicted without his consent in the film Straight Outta Compton, recently made headlines and illustrates that securing life rights is not necessary if you are depicting a living subject – in a non-defamatory manner – who is considered a semi-public figure. Among the claims in the lawsuit against the producers and NBCUniversal, former N.W.A. manager Jerry Heller alleged that his name and likeness were misappropriated because he had not consented to the use of his name, likeness or story in the film. The Court dismissed Heller’s claims on the grounds that “the role Plaintiff played in N.W.A.’s rise to stardom is certainly a matter of public interest. The First Amendment, therefore, insulates Defendants of any liability for misappropriation of likeness.” Heller’s life – as it related to the influential rap group’s story – was both newsworthy and a matter of public interest, and therefore protected by the First Amendment. For that reason, it wasn’t necessary to get his consent to depict him in the film.
With respect to defamation, however, it should be noted that one of Heller’s allegations has survived on the grounds that an implication made within the film relating to Heller’s business practices is “actionable.” That said, even though that single issue in his suit remains alive, Heller still has a high hurdle to overcome as he must show that the producers acted with intentional malice in order to succeed in his defamation claim.
When it comes to deciding whether or not you need life rights, how public or private your subject’s life is or was is important. Because more information about the lives of public officials and figures (such as Heller, to the extent that he managed a well-known group of musicians) is available publicly, and therefore more exposed to scrutiny, filmmakers can feel more confident in depicting their life stories without fear of successful legal challenges on privacy grounds.
The flip side is the scenario where the person you are depicting is unknown and out of the public eye. In that case, your film is likely the vehicle that thrusts them into the public consciousness and if it is not done with that person’s consent, that could form the basis for an invasion of privacy claim, among others.
Dead or Alive?
Whether or not the person whose story you’d like to use is alive or dead is also a significant factor in determining the need to secure life rights. The law does not recognize defamation or invasion of privacy claims of dead people. In other words, if you are dead, then under U.S. law, you cannot be defamed and your privacy cannot be infringed on. But that doesn’t mean that the estate of the dead person – particularly if the dead person is a celebrity – might not bring some other type of claim if the producer does not bring the estate on board the project and obtain consent to depict the life of the deceased. In addition, there may be very specific reasons to secure an agreement with the estate, such as access to materials relating to the deceased. If the dead person was an artist or musician, for example, the estate may control the intellectual property rights in the deceased’s works, in which case some type of agreement with the estate is unavoidable if you want to use those works in your film.
When to Get Life Rights Even if You Don’t Legally Need Them
As explained above, it is not always necessary and sometimes not even possible to secure life rights in order to depict someone in a film. It is uncertain as to whether Jerry Heller would have given permission to be portrayed in Straight Outta Compton even if he had been asked. Fortunately for the producers, the fact that he was deemed to be a semi-public figure gave the filmmakers broad First Amendment protection against his claims. However, there are several benefits in securing life rights and the cooperation of the subjects of your films through life rights agreements. First, it may be very beneficial to have your subject actively participating in or promoting the film and providing access, material and information that is integral to the story.
Second, a good life rights agreement will include a very thorough release whereby your subject agrees that you may use her appearance and name and likeness in your film, and further agrees not to bring claims of defamation, invasion of privacy, etc., against you or any third-party distributors. That kind of release agreement may in fact be absolutely required for distribution and insurance purposes.
Third, these agreements, where necessary or optimal, can be an opportunity to create trust, open dialogue, and cultivate a spirit of cooperation and partnership between the filmmaker and the subject.
Nicole Page is a partner and head of media and entertainment law at Reavis Parent Lehrer LLP in New York.