People/Biz

Need to Know: Donaldson + Callif’s Dale Nelson on right of publicity

This week, Realscreen returns with ‘Need to Know,’ a series of articles featuring the perspectives of entertainment lawyers on various issues impacting the non-fiction and unscripted production landscape, designed to ...
April 8, 2020

This week, Realscreen returns with ‘Need to Know,’ a series of articles featuring the perspectives of entertainment lawyers on various issues impacting the non-fiction and unscripted production landscape, designed to give you the information you need to know in an increasingly complex business environment. Here, Donaldson + Callif partner Dale Nelson offers key information on right of publicity for non-scripted and documentary producers.

The portrayal of real people in documentaries, reality shows and other non-scripted projects can give rise to the little understood right of publicity.

Many producers, agents, managers, and even some lawyers seem to forget that creative works, including non-scripted films, are insulated from the right of publicity by First Amendment considerations.

Claims of the unauthorized use of “life story rights” seem locked in the public consciousness even though, legally, there is no such thing as “life story rights.”

Put simply, First Amendment free speech principles protect a filmmaker’s right to speak about real persons, real events and real things without the permission of the persons involved. Were the law otherwise, it would lead to censorship — chilling speech about truthful accounts.

In this era of public interest in (and demand for) reality shows, documentaries and biopics, it’s important for producers and distributors to be aware of their First Amendment rights to tell these stories, and to be prepared to defend if confronted with a claim from a person discussed or portrayed in a story.

UNDERSTANDING RIGHT OF PUBLICITY

The right of publicity is a right under state law (there is no federal law) to control the commercial use of a person’s name or likeness, and sometimes voice or signature.

However, the constitutional right to free speech creates limitations:

1. Not all states recognize a right of publicity

Rights of publicity are governed by state law and the relevant laws of the different states vary. Currently, 17 states do not or may not recognize a right of publicity.

2. In many states, the right of publicity is not descendible

Among the 33 that currently recognize a right of publicity, in eight either the right is not descendible — capable of being inherited — after death or no court has addressed that issue. New York is one of those jurisdictions where the right is not descendible. In those states, the estate of a deceased person has no valid right of publicity claim.

3. Many state right of publicity statutes contain express exemptions for films and television programs

In order to expressly accommodate free speech principles, many state right of publicity statutes contain an express exemption for the use of a person’s name or likeness in an expressive work such as a motion picture. California’s statute contains such an exemption.

Nowadays, when a right of publicity bill is introduced into a state’s legislature, either in new form or for amendment, some version of the expressive work exemption will accompany it. Where such an exemption exists, a claim of a violation based on a film or other audiovisual work can be easily disposed of.

4. Many state statutes contain exemptions for newsworthiness or matters in the public interest

Even where expressive works are not categorically expressly exempted from the statute, works of a biographical, historical or other newsworthiness nature are usually exempt under a newsworthiness exemption.

5. In the absence of express exemptions, courts will construe right of publicity statutes so as not to reach films and television programs

Some state statutes, particularly of the older variety, do not contain explicit expressive work exemptions, but that does not mean that expressive works are subject to right of publicity claims.

Rather, in the absence of an express exemption, courts have read First Amendment protections into the statute, reasoning that to do otherwise would run afoul of the First Amendment.

In Arenas v. Shed Media US Inc., for example, Gilbert Arenas — a former professional basketball player featured in VH1′s Basketball Wives: Los Angeles— alleged the use of his identity in the series was “solely to attract attention to the show,” and arguing that the show was not about him.

The court rejected the claim, reasoning that “while the show is not predominantly about Arenas, it is not so unconnected to him as to vitiate Shed Media’s First Amendment defense.” The court then added: “Even if the show were predominantly about Arenas, it would still qualify for protection under the public interest defense. A contrary rule would chill a variety of expression, such as unauthorized biographies, that enjoy well-established First Amendment protection.”

6. Exercise care in promotion or advertising

Note that the rules don’t change for advertising or promotion of films, and many state statutes have exemptions that cover the advertising or promotion of expressive works as well as the works themselves.  However, you should be careful not to unfairly, or disproportionately, rely on one person’s name or likeness to promote your project.

7. Distinguish a right of publicity claim from other claims

Filmmakers must remember that separate and apart from what may be a dismissable right of publicity claim, a claimant could still have other claims, such as defamation and/or false light claims, if there is a false and defamatory portrayal in a biographical or reality film.

In accordance with First Amendment protections, the standards for defamation and false light require a high burden of proof of falsity and actual malice or, at a minimum, negligence.

A right of publicity cause of action, by contrast, which requires none of these elements, should never be used as an end-run around these strict constitutional standards.

Fortunately, legal theory now recognizes and respects the distinctions, and is clear that right of publicity claims have no place in the context of expressive works, including non-scripted works.

In the words of Justice Egerton, “Whether a person portrayed in one of these expressive works is a world-renowned film star — ‘a living legend’— or a person no one knows, she or he does not own history. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.”

Dale Nelson is a partner in the Beverly Hills boutique Donaldson + Callif LLP. Prior to joining the firm, Dale served as Vice President and Senior Intellectual Property counsel at Warner Bros. for over 25 years. Dale specializes in issues related to copyrights, trademarks, personal rights and clearance, championing the free speech rights of clients in the filmmaking and creative industries.

About The Author
Daniele Alcinii is a news editor at realscreen, the leading international publisher of non-fiction film and television industry news and content. He joined the RS team in 2015 with experience in journalism following a stint out west with Sun Media in Edmonton's Capital Region, and with communications work in Melbourne, Australia and Toronto. You can follow him on Twitter at @danielealcinii.

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