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Sensational real world events and real world people make for popular source material for fictional creative works. This article will help you to understand life rights and the legal implications of creating fictionalized accounts of real life. Generally, the First Amendment allows you to create a fictionalized account of a real world event or person’s life without obtaining the permission of the people involved. However, the First Amendment is not a complete defense and the subject of your account may be able to take legal action. Obtaining a subject’s life rights will give you protection from potential lawsuits and provide additional benefits. Below is a discussion of life rights and what to consider when you do not secure life rights.
Life Rights: “Life rights” is technically a misnomer. Except for limited circumstances, no one owns the right to their life story. The events of one’s life are facts, and facts are not protected (except, see below for a discussion on invasion of privacy and other legal actions). Think of life rights as a bundle of benefits and protections. Purchasing a subject’s life rights provides you the following:
- Protection from lawsuits by the subject – The life rights agreement will include language that prevents the subject from suing you for alleged damages to their character. See below for a discussion of these legal claims.
- Cooperation from the subject – The subject can give you a firsthand account of the events you are depicting so that your account is authentic.
- Access – The subject can grant or assist you with access to third parties, locations, and significant documents.
Life Rights Agreement: Below are the main topics that a life rights agreement should cover.
Option/Sale: You can either option the life rights or purchase them outright. An option is the exclusive right to purchase the life rights within a certain period of time for a set fee. Please refer to the Underlying Rights article for a detailed discussion on optioning.
Rights: Life rights can be divided into time periods or specific events of the subject’s life. You will ideally want the subject’s entire life, but be prepared for the subject to limit you to specific dates or events.
Consultation: You will want to obligate the subject to help you with your account. The subject should agree to help you locate and speak with third parties, obtain sensitive documents, and complete other tasks as necessary.
Fictionalization and Creative Control: You will likely want to the ability to fictionalize, embellish, or dramatize the subject and events. This could be a sticking point since the subject may not want to relinquish control. Be prepared to discuss and compromise on who gets final approval over the script and cut, although please make sure not to promise more than you can deliver. In projects made for commercial distribution, typically the studio, distributor or television network will have final cut.
Representations and Warranties: This is where the subject agrees not to sue you over the use of the subject’s life story. See below for some of the causes of actions the subject might have if you do not purchase the life rights.
*Note that the subject is unlikely to be the only person that is depicted in your account. The subject may have a spouse or friend who plays a critical role. Your life rights agreement with the subject does not cover other people. Consider obtaining the life rights to those other characters.
Forgoing Life Rights: As previously stated, life rights are not necessary. You can proceed with your account, but you must tread cautiously. Below are legal claims that a subject may be able to bring against you and the defenses to the actions. Note that the some of the terms are vague and ambiguous. The purpose here is to provide a brief overview. Consult an attorney about whether your proposed plan subjects you to liability.
Defamation: There are two types of defamation: libel and slander. Libel is defamation through publication and slander is defamation through speaking. A statement is defamatory if it “tends” to harm the subject’s reputation such that people think less of the subject or are deterred from associating with the subject. A defense to a defamation claim is the truth. If the statement is true, you are not liable for defamation. Moreover, a public figure has a higher burden of proof than a private figure. A public figure must prove that the statement is false and that you acted with “actual malice.” Actual malice means that you knew the statement was false or that you acted in “reckless disregard” of the truth.
Invasion of Privacy: Publicizing private facts of the subject’s life could expose you to liability if the fact would be “highly offensive” to a “reasonable person.” Truth is not a defense because otherwise there would be no substance to this claim. Consent to publicize the “highly offensive” fact, such as through a life rights agreement, is a defense. Additionally, “newsworthy” events are not subject to an invasion of privacy claim.
*Note that the claims for defamation and invasion of privacy die with the subject. You cannot be liable for defaming or invading the privacy of someone who is dead.
Right of Publicity: A subject has the right to control the use of his or her identity in commercial settings. A subject’s identity broadly includes his or her name, image, voice, and to a lesser extent any other specific trait that defines the subject. Generally, your fictionalized account will not infringe a subject’s right of publicity because you are protected by the First Amendment’s freedom of expression. For this life rights discussion, a violation of the subject’s right of publicity primarily arises in connection with the marketing and advertising of your work. Limit your use of the subject’s name as much as possible and do not use his or her image unless absolutely necessary.