Ever run across someone whose life seemed ripe to be made into a movie? Typically, when such a story hits the media, there’s a scramble to get the rights. But what exactly does that mean? And more to the point, when do you need to get the life rights and when don’t you need them?
WHOSE LIFE RIGHTS ARE THEY ANYWAY?
For the most part, we are talking about life rights for living people, not the deceased and not the living dead. People can sue and be sued for certain things while they are alive. But once they die, the ability to sue them for certain causes ends – not everything, but certain things. Some rights that a person has in life do in fact continue on with their estate after they die, and some do not. If you’re contemplating buying life rights, the particular causes of action that you need to be concerned about are defamation and privacy rights claims. The right to be protected against these things does not go to a person’s estate after they die. In other words, someone can only sue you for violating their privacy rights, and their right to be free from defamation, while they are alive. Once they are dead, their estate generally cannot sue you for these particular causes of action. But be warned: these laws vary depending on what state you are in, or where you are making your deal.
As is often the case, there’s a particular twist to the law on this in the Golden State. If you are in California, or making a deal subject to California law, the law commonly known as the Celebrity Rights Act will apply. Passed in 1985, this law allows the publicity rights for celebrities to pass to their estates. Not surprisingly, California is more protective of the rights of dead celebrities than most states. Maybe that’s why we pay so much in taxes?
California Civil Code Section 3344 is the place to go if you want to see the law dealing with publicity rights for living people (you can Google it). If you’re interested in the “Astaire Celebrity Image Protection Act,” I refer you to California Civil Code Section 3344.1, which delineates when after-death rights of a deceased celeb will descend to the estate. There are conditions that have to be met, and this is where you can find the specifics.
It also matters when the dead celebrity died. One of the key cases in this area [Shaw Family Archives Ltd. V. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y., 2007)] had to do with Marilyn Monroe (natch), who died before the Celebrity Rights Act was passed. Because of the ruling in this case, California passed a law that extended publicity rights to seventy years post-mortem, and retroactively for anyone who made the mistake of kicking the bucket before 1938.
The bottom line is that, if the celebrity is dead, you may not need to get a depiction release. But that’s a determination that will need to be made according to the law of your state and other factors.
WHY DO YOU NEED THE RIGHTS TO SOMEONE’S LIFE STORY?
When you acquire the rights to tell the story of someone’s life, or a part of it, you’re actually getting a number of rights. First and foremost, you are buying the right to portray this person’s story in particular ways and in particular mediums, depending on the parameters of the deal. Second, you are buying the right to legal protection. If you do it right, a proper life rights acquisition will provide cover and shield you from being sued by the subject for invasion of privacy and other privacy rights. Properly handled, a life rights acquisition should protect you from being sued for defamation as well.
AND WHAT IF YOU CAN’T GET THE LIFE RIGHTS….
If you can’t get the rights, all may not be lost. Consider fictionalizing the story. If you faithfully and sufficiently change the specifics, such as the names and places and other identifying bits, you may be able to do a version of the same story. The key is making it so that the person or persons involved aren’t recognizable to the viewing public. If they are, you may be heading to court. And even if it’s slightly arguable, you may still be heading to court. But if you use the actual story to essentially inspire a fictional one of your own devising, you may be within your rights. Just be sure your make-believe version is legally sufficient, and sufficiently fictional.
