Should you pursue life rights for movies?

Originally published by Eric Quitugua.

When it comes to actors, musicians, and other notable people, much information—from major events in their lives and careers to the personal fodder for tabloids—is made public and can generally be used for fiction films and documentaries.

But the intimate, sometimes sordid details of the subject may not always be readily available on your average gossip rag. That’s when filmmakers, who want to get closer to the subject, pursue life rights to a story.

“The best kinds of documentaries tell a human story from a person’s perspective—so much of that is having that access,” said Megan Gilbride, an Emmy-winning and Producers Guild of America Award-nominated documentary producer and panelist on SXSW’s “To Get or Not to Get: Life Rights & Non-fiction Films.”

Life rights are legal agreements with a subject or estate that give full access to a subject—including artwork, journals, recordings, and anything else that can give extensive insight into the person.

Panelists Lisa Callif and Dean Cheley, both partners in entertainment law firm Donaldson + Callif, Fox Rothschild partner Lincoln Bandlow; and Gilbride explained the nuances of such agreements.

Life rights can protect filmmakers from litigation. Typically, agreements include a waiver of claim that ensures a subject won’t sue the filmmaker if he or she doesn’t like the depiction. These waivers can also grant the filmmaker exclusive access to the subject.

According to the panelists, the disadvantages of not having the life rights:

• It’s tougher and more expensive to get Errors & Omissions Insurance;
• Distribution can be limited with a lack of the subject’s participation; and
• The risk of litigation increases.

That’s not to say life rights agreements aren’t without their downsides—and that every panelist agrees filmmakers should seek such contracts when producing documentaries.

The idea of a life agreement that hands over the keys to an entire life story can be off-putting to a subject and scare them away from participating in production. These contracts can be especially troubling when filmmakers are building trusting relationships with the subject or estate, Cheley said.

“Should we seek life rights for documentaries? My answer is generally no,” he said.

Another focus of the panel was the right of publicity. This is an individual’s right to control commercial use of his or her name, image, and likeness. Whereas life rights agreements deal with accuracies in portrayals in film, cases involving alleged violations of the right of publicity deal with advertisements and alleged exploitation of a person’s image.

However, Bandlow said questions linger on the success of such cases when they deal with advertisements, and that they typically get overturned. This was the case with actor Dustin Hoffman after he claimed in 1999 that Los Angeles Magazine violated his right of publicity in a digitally altered photo spread featuring his image.

He was initially rewarded about $3 million by a federal judge in Los Angeles but the Ninth Circuit Court of Appeals in California reversed the decision, concluding the photo spread was speech protected by the First Amendment and not commercial speech.

Bandlow called litigation difficult in the case of violation claims in movies. “A movie isn’t commercial so it’s protected speech,” he said. “It’s transformative so it’s protected.”

Something the attorneys are paying attention to is a California appellate court’s upcoming decision in “Gone With the Wind” actress Olivia de Havilland’s June 2017 lawsuit against FX over her portrayal in “Feud: Bette and Joan.”

The veteran actress of Hollywood’s Golden Age said the docudrama recounted stories that never happened or that she never gave permission to use, and portrayed her as a gossip. De Havilland made claims of false light, defamation, and violation of her right of publicity.

Bandlow said the case could set a standard for how right of publicity cases are handled in California.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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